Opinion
No. 35307-5-II.
January 15, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 01-2-01988-2, Jay B. Roof, J., entered August 2, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, C.J., concurred in by Quinn-Brintnall and Van Deren, JJ.
Douglas and Mary Ann Field appeal the trial court's denial of their claims for attorney fees and costs under CR 11 and RCW 4.84.185, damages under RCW 4.28.328 for unjustified filing of a lis pendens, damages under RCW 64.12.030 for destruction of vegetation, and its denial of their motion for reconsideration. We reverse and remand for an award of damages under RCW 64.12.030. We affirm as to all other claims.
FACTS
The Fields and Ronald and Ann Dawes were neighbors in a rural development in the Kingston area of Kitsap County. The Hansville Highway bordered the development on the east and a privately owned logging area called the Pope Resources Timberland (Pope land) bordered it on the west. A common road ran from east to west through the center of the development. At the west end of the road near the Pope land, the Daweses owned property north of the road and the Fields owned property south of the road. The Daweses and the Fields both purchased their properties in 1978; the Daweses constructed and occupied their home in the mid-1980s; and the Fields occupied their home in the mid-1980s and completed its construction in the 1990s.
In the 1970s, the development's property owners entered into a written easement agreement for the use of utilities and ingress and egress on the common road. The common road served as the easement's center line and the easement extended 30 feet on either side. For years afterward, those living south of the common road treated the road as their northern boundary and those living north of the road treated it as their southern boundary.
According to Ronald Dawes, around 1993, he discovered that the west end of the common road actually veered north such that it was located entirely on his property and that his true southern boundary was 30 feet south of the common road toward the Field home. At that time, Dawes took no action and did not inform anyone other than his wife of the discovery.
Until the present dispute, the Daweses and Fields were peaceful neighbors. The Daweses claim that, from approximately 1990 to 1997, the Fields did not regularly reside on their property and that renters occupied their home, none of whom used the land in what the Fields treated as their front yard. The Daweses contend that problems arose when the Fields returned to their home full time in 1997, at which point their historical use of the common road and surrounding property began to change. Specifically, they claim that the Fields erected encroachments on their property, including a wire fence and portable storage sheds; dumped rocks; damaged trees and shrubs; and left garbage and other items on their property, constituting a nuisance. According to the Daweses, these problems culminated in 2000, when the Fields dumped a load of gravel on their property, prompting them to obtain a survey establishing that their actual boundary was south of the common road and to commence litigation against the Fields. The litigation involved two primary areas of dispute: (1) whether the common road ran west past the Field house to the Pope land (as the Fields claimed) or terminated at the Field driveway (as the Daweses claimed); and (2) whether the Fields owned the property up to the common road's center line, subject to easement, or whether the Daweses' property line extended south of the common road toward the Field home, also subject to easement.
The Fields testified that from 1990 to 1994, the family lived in Diablo, Washington, but returned to their property on weekends to build their home. They testified that, from 1994 on, Douglas Field lived on the property and continued constructing the home while his wife and children were in Texas caring for an ailing mother. The entire family resumed living on the property as of 1997.
The Fields contend that their use of their property and the common road never changed and that they conducted activities in what they and all neighbors had always understood to be their front yard. Although they acknowledge that it was later established that the common road veered north onto the Daweses' property, they argue that the Daweses did not learn this until 2000, when Mary Ann Field informed Ronald Dawes that another neighbor had a survey done in the early 1990s and the neighborhood learned that multiple boundary lines could be different from what they had understood. At that time, the Fields believed that the survey results were significant only for purposes of relocating the easement but not for changing the property lines because so much time had passed.
The Bennetts, the Fields' neighbors to the east, also obtained a survey with the Daweses in 2000. The survey confirmed that the boundary lines differed. The Fields and the Bennetts also had a dispute arising from the survey results, which they settled. But, at trial, Mary Ann Field testified that she believed that the Bennetts and the Daweses had, to some extent, colluded in harassing her family and attempting to defeat their property claims.
According to the Fields, once Ronald Dawes learned of the survey results in 2000, he began conducting his own surveys in their front yard and eventually launched into a campaign of intimidation and harassment that included trespassing, surveillance activities, poisoning their trees and shrubs, running their young daughter and her bicycle off the road, and putting nails in their tires.
In July 2001, the Daweses sued the Fields for reformation of deed, adverse possession, recognition and acquiescence, boundary by estoppel, quiet title, trespass to land, timber trespass, nuisance, and injunctive relief. The Fields counterclaimed for quiet title; trespass; waste and damage to property; outrage and intentional infliction of emotional distress; and an award of attorney fees and costs under RCW 4.84.185, CR 11, and RCW 4.28.328.
In their counterclaim, the Fields argued that the Daweses lost title to all lands south of the common road by adverse possession and that the Daweses' suit was frivolous and brought in bad faith because they could not establish adverse possession and failed to recognize the Fields' superior title to the disputed property.
During the course of litigation, both parties learned that the deed conveying the property from the prior owner of the Daweses' property, William Selley (Selley Estate), to the Daweses omitted the 30-foot easement south of the common road. The Fields sought title to the parcel by reopening the Selley Estate's probate and purchasing title from the Estate's personal representative. The Daweses sought title by purchasing a quitclaim deed from one of the Selley heirs. The Daweses also filed a lis pendens on the disputed parcel in 2002.
In January 2004, the Fields moved for partial summary judgment, arguing in part that the Daweses filed false declarations fabricating questions of material fact about the common road's western terminus, failed to state a claim because they admitted to never exclusively occupying property south of common roadway, had no grounds for a boundary by estoppel claim or a trespass claim, and did not hold superior title to the 30-foot parcel. The trial court denied their motion.
The trial court held a bench trial in February and March 2006. At trial, the Fields moved to dismiss the claims, arguing that the Daweses failed to establish adverse possession, boundary by estoppel, nuisance, or trespass and that there was no basis for reformation of the deed. The trial court denied their motion.
At the end of trial, the trial court concluded that neither the Daweses' quitclaim deed nor the Fields' personal representative's deed had any legal effect because the Selley Estate never held a conveyable legal interest in the southern 30-foot parcel. But the trial court quieted title in the Fields to the area south of the common road under the doctrine of mutual recognition and acquiescence, and it vacated the lis pendens.
The trial court also found that, contrary to the Daweses' testimony, affidavits, and declarations, the common road could not have terminated at the Field driveway but extended west to the Pope land and was at all times a passable road. It found that it could not believe that, before 2000, the Daweses thought the common road was located on their property. It also found that, because no credible evidence supported the Daweses' claim that they used any property south of the common road before 2000, their adverse possession claim failed.
But the trial court declined the Fields' request for attorney fees and costs under RCW 4.84.185 and CR 11. It also denied the Fields an award of fees under RCW 4.28.328 for the Daweses' filing of the lis pendens, on the basis that both parties erroneously pursued legal title in the south 30-foot parcel based on a mistaken belief that the Selley Estate held legal title to the parcel. Although it found that Ronald Dawes did "some mean-spirited things to the Fields" (Clerk's Papers (CP) at 1122), including applying a chemical agent causing plants to die along the south side of the road, it declined to award damages under RCW 64.12.030 for damage to trees and shrubs, finding the Daweses' actions were consistent with a claim of ownership based on a misunderstanding regarding legal title.
The trial court did not enter any findings related to its determination not to award CR 11
The Fields appeal the trial court's denial of sanctions and damages.
Before their appeal, the Fields sought CR 11 and RCW 4.84.185 sanctions three times: in their pretrial motion, during trial, and in their motion for reconsideration. The trial court denied all their sanction requests.
ANALYSIS Cr 11 Sanctions The Daweses' Declarations
The Fields first argue they are entitled to CR 11 sanctions because the Daweses submitted false declarations to defeat partial summary judgment on the issue of the common road's western terminus. Specifically, they argue that: (1) the Daweses falsely claimed that the common road ended just past the Fields' eastern boundary; (2) they attached maps to their declarations that falsely depicted the road's western terminus, based on their request that the surveyor did not accurately depict the road; and (3) Ronald Dawes made handwritten marks on the map attached to his declaration that altered the road's western terminus. sanctions, and it was not required to. See Skimming v. Boxer, 119 Wn. App. 748, 755, 82 P.3d 707 (a trial court need not enter findings when it rejects a request for CR ll sanctions; it is the decision to impose sanctions that the record must support).
They contend that sanctions must be awarded because the Daweses' declarations created a false issue of material fact on which the trial court denied the Fields' motion for summary judgment; thus, the Daweses unnecessarily prolonged litigation. They argue that the trial court's decision not to award CR 11 sanctions, despite its finding that the Daweses' claims were not credible or believable, was an abuse of discretion undermining the rule's purpose.
We review the trial court's imposition of CR 11 sanctions for an abuse of discretion. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994). A trial court abuses its discretion when it bases its decision on manifestly unreasonable or untenable grounds. Washington State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993). We may find an abuse of discretion where the trial court relies on unsupported facts, adopts a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
CR 11 is meant to prevent two types of filings: baseless filings and filings made for an improper purpose. MacDonald v. Korum Ford, 80 Wn. App. 877, 883, 912 P.2d 1052 (1996). "A filing is 'baseless' when it is '(a) not well grounded in fact, or (b) not warranted by (i) existing law or (ii) a good faith argument for the alteration of existing law.'" McDonald, 80 Wn. App. at 883-84 (quoting Hicks v. Edwards, 75 Wn. App. 156, 163, 876 P.2d 953 (1994)). The rule is intended to curb abuses of the judicial system. Biggs, 124 Wn.2d at 197. To impose sanctions for a baseless filing, the trial court must find that a party filed a claim without a factual or legal basis and that the attorney who signed the filing did not conduct an objectively reasonable inquiry. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992).
The threshold for imposing CR 11 sanctions is high. Skimming v. Boxer, 119 Wn. App. 748, 755, 82 P.3d 707 (2004). Because CR 11 sanctions have a potential chilling effect, trial courts are to impose sanctions only when it is "patently clear that a claim has absolutely no chance of success." Skimming, 119 Wn. App. at 755. That a complaint does not ultimately prevail on its merits does not answer whether CR 11 sanctions are required. Bryant, 119 Wn.2d at 220.
Here, the trial court did not indicate on what grounds it denied the Fields' motion for summary judgment. But the record shows that, at the summary judgment stage, the trial court relied on multiple declarations in addition to the Daweses', at least three of which suggested that no common road existed west of the Field property. William Flaherty stated that he maintained the graveled road for over 20 years and never maintained it west of the Field home because, historically, the area had been covered by grass and brush; John Russell stated that the common road led into the Field driveway and the land beyond was grassy with some trees until at least five years before and, before that, there were no fences or structures west of the driveway leading to the Field property; David Bennett stated that the area from the Field house west to the Pope property was largely grassy with a few small trees and vines; the grassy area was maintained by the Daweses and remained grassy until the Fields cleared the area a few years before. To the extent the Daweses prevailed at the summary judgment stage, other declarations pointed to issues of material fact.
At trial, Ronald Dawes conceded during cross-examination that the map attached to his declaration was a "rough drawing" with "rough pencil marks" made by someone other than the survey company. III Report of Proceedings (RP) at 448. Ann Dawes conceded that it was possible to take certain vehicles west of the Field driveway but stated that she had a different definition of "road," consistent with her declaration. V RP at 706. The Daweses' son testified that he was not familiar with the map attached to his declaration and conceded that it was "off" and that the road continued west of what the map depicted. II RP at 349.
After considering all evidence, the trial court ultimately found that the common road could not have ended as the Daweses asserted in their testimony and declarations. In reaching its conclusion, it relied heavily on aerial photographs demonstrating that the road had existed since the 1980s, contradicting what the Daweses reported.
In their declarations, the Daweses described the area west of the Fields' as "grass and other vegetation . . . not used or maintained for ingress or egress"; "[t]he land to the west, past the end of the access road, was covered with brush, weeds and wild grass . . . [driven] into . . . several times with [a] truck to harvest firewood; "the road ended, with natural forest growth on the other side/westerly"; "generally forest and underbrush." CP at 26, 621, 638, 643.
The Fields cite Fisons as the lead case holding that a trial court abused its discretion by failing to award sanctions for discovery violations under CR 26(g). 122 Wn.2d at 336. In Fisons, our Supreme Court held that the defendant drug company committed sanctionable discovery violations by providing misleading discovery responses and failing to produce "smoking gun" documents pursuant to discovery requests, thereby unnecessarily prolonging litigation. 122 Wn.2d at 347, 349. The Fisons court reversed the trial court's decision not to impose sanctions, in part, because it erroneously relied on the defendant's lack of intent to misfile documents when intent was not required to impose sanctions. Fisons, 122 Wn.2d at 344-45. It also held that the trial court made other erroneous legal conclusions and findings unsupported by substantial evidence. Fisons, 122 Wn.2d at 345.
Fisons sets forth the following criteria for the trial court to consider in determining appropriate sanctions: (1) the least severe sanction adequate to serve the purpose of the particular sanction should be imposed; (2) the sanction must not be so minimal as to undermine the purpose of discovery; (3) and the sanction should ensure that the wrongdoer does not profit from the wrong. 122 Wn.2d at 355-56. The court may also consider factors such as the wrongdoer's lack of intent to violate the rules and the other party's failure to mitigate. Fisons, 122 Wn.2d at 356.
In contrast to Fisons, where the import of the "smoking gun" documents was undisputed and the defendant's disregard of discovery requests blatant, here there was a disagreement as to what constituted a "road" and the purpose for which the Daweses obtained the survey attached to their declarations. Further, although we agree that the Daweses' testimony on cross-examination conflicted with their sworn declarations, it is not clear from the record whether these inconsistencies were due to fabrications or whether they simply reflected the Daweses' interpretation of where the common road, as they defined it, ended. Ann Dawes testified: "It ended in terms of being used on a regular, consistent basis, which was my thought in terms of a road as something that is being used on a regular basis." IV RP at 706. It is also not clear from the record whether testimonial inconsistencies resulted from the Daweses' actual recollection of events earlier in time, which was at odds with documentary evidence.
Ultimately, it is within the trial court's province to weigh credibility. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We decline to extend its conclusion that a witness's testimony is not credible to establishing a finding of sanctionable conduct under CR 11. See Biggs, 124 Wn.2d at 198 n. 2 (CR 11 sanctions are reserved for egregious conduct). We hold that the trial court's decision not to impose CR 11 sanctions here on the basis of the Daweses' declarations was not an abuse of discretion.
The Merits of the Daweses' Claims
The Fields also contend that they are entitled to CR 11 sanctions because the Daweses' claims had no merit. Specifically, they argue that for 22 years the Daweses acquiesced in the common road as the true boundary and so were unable to defeat the Fields' claim of adverse possession, the Daweses had constructive notice of the easement agreement recorded in 1972 and were bound by it, and any record title the Daweses held was irrelevant because it was not a defense to mutual recognition and acquiescence or to adverse possession.
At trial, the Daweses offered multiple legal theories as a basis for their claimed property right. Viewed in the light most favorable to the Daweses, the trial court found these theories sufficient grounds for denying the Fields' motion for judgment. Although it ultimately concluded that the Daweses' claims did not have merit, again, this does not equate to a finding of sanctionable conduct. See Bryant, 119 Wn.2d at 220 (that a complaint does not ultimately prevail on its merits does not answer the question whether CR 11 sanctions are required). The Dawses were entitled to advance their theories of the case and present argument to the trial court for its official determination of their claims., See Biggs, 124 Wn.2d at 198 n. 2 (CR 11 sanctions are not "simply another weapon in a litigator's arsenal."); Bryant, 119 Wn.2d at 219 (CR 11 is meant to deter baseless filings and curb abuses of the judicial system, but the rule is "not intended to chill an attorney's enthusiasm or creativity in pursuing factual or legal theories."); Skimming, 119 Wn. App. at 755 (Because CR 11 sanctions have a potential chilling effect, trial courts are to impose them only when it is "patently clear that a claim has absolutely no chance of success.").
The Daweses' theories included that a prescriptive easement analysis was most applicable because the boundary line for the easement was north of where it should have been; that the Fields were not in a position to control the land at issue between 1990 and 1997, as required by a prescriptive easement analysis; that the deed inadvertently omitted the south 30-foot strip in the first place, so title was relevant under an equitable estoppel analysis; that the Daweses' claim to title was superior because the personal representative's deed was not valid to convey an interest against heirs after the closing of probate; that the Daweses held an interest in the strip as a legal tenant-in-common with other Selley heirs; and that adverse possession of property subject to easement requires a higher threshold showing, which the Fields could not meet.
The Fields' argument that record title is insufficient to defeat adverse possession presumes that the trial court would find that they sufficiently established all elements of adverse possession. The Daweses' record title could have been relevant if the Fields failed to establish adverse possession. Notably, the trial court did not find that record title was irrelevant, but only declined to reach it because it was not properly conveyed to either party. Nor did it quiet title in the Fields on the basis of adverse possession.
We also note that the Fields make no showing that the Daweses' attorney failed to conduct a reasonable factual and legal inquiry. Bryant, 119 Wn.2d at 220.
The trial court's decision not to award the Fields CR 11 sanctions for the Daweses' claims was not manifestly unreasonable. It did not abuse its discretion.
Attorney Fees and Costs Under RCW 4.84.185 for Filing a Frivolous Lawsuit
The Fields also argue that they are entitled to attorney fees and costs under RCW 4.84.185. They assert that the Daweses' claims were frivolous and presented without reasonable care.
The Fields base this claim on the same arguments set forth in their request for CR 11 sanctions for the Daweses' meritless claims. We do not repeat them here.
Like CR 11 sanctions, the imposition of attorney fees under RCW 4.84.185 lies within the sound discretion of the trial court. We do not disturb its decision absent a showing of an abuse of that discretion. Tiger Oil Corp. v. Dep't of Licensing, 88 Wn. App. 925, 937-38, 946 P.2d 1235 (1997).
An action is frivolous if it "cannot be supported by any rational argument on the law or facts." Clarke v. Equinox Holdings, Ltd., 56 Wn. App. 125, 132, 783 P.2d 82 (1989). The trial court must view the action in its entirety and may only award fees if the action is frivolous as a whole. Biggs v. Vail, 119 Wn.2d 129, 136, 830 P.2d 350 (1992).
Here, the Daweses were unable to substantiate their adverse possession claim because their only clearly established use of the disputed property was intermittent stargazing. We agree that the Daweses' adverse possession claim, standing alone, was arguably frivolous. But, as discussed, they were entitled to advance other theories of ownership, even though the Fields ultimately prevailed on their mutual recognition and acquiescence theory. See MacDonald, 80 Wn. App. at 884 ("To avoid being swayed by the benefit of hindsight, the trial court should impose sanctions only when it is 'patently clear that a claim has absolutely no chance of success.'") (quoting Oliveri v. Thompson, 803 F.2d 1265, 1275 (2d Cir. 1986) (internal quotation marks omitted). The trial court acted within its discretion to determine that the Daweses' action was not frivolous in its entirety and declining to award attorney fees and costs under RCW 4.84.185.
Damages Under RCW 4.28.328 for Filing a Lis Pendens
The Fields next claim they are entitled to fees under RCW 4.28.328 because the Daweses had a frivolous claim to ownership and failed to establish substantial justification for filing a lis pendens. They argue that the trial court's rationale for refusing to award fees (that both parties mistakenly believed that the Selley Estate could convey legal title) is misplaced because record title could not have overcome adverse possession or mutual recognition and acquiescence, so the Daweses had no legitimate reason to seek title in the first place.
A lis pendens gives notice of pending litigation affecting the title to real property. United Sav. Loan Bank v. Pallis, 107 Wn. App. 398, 405, 27 P.3d 629 (2001). Under RCW 4.28.328, a claimant "may be liable for damages and attorney fees to a party who prevails in defense of the action," unless the claimant establishes a substantial justification for filing the lis pendens. South Kitsap Family Worship Ctr. v. Weir, 135 Wn. App. 900, 911-12, 146 P.3d 935 (2006). A lis pendens is "substantially justified" where a claimant has a reasonable and good faith basis in fact or law for believing he has an interest in the property. Weir, 135 Wn. App. at 912.
The Daweses' mere belief that they were entitled to the property was insufficient to establish a substantial justification for filing the lis pendens. See Richau v. Rayner, 98 Wn. App. 190, 198, 988 P.2d 1052 (1999). But as discussed, the Daweses advanced multiple legal theories of ownership, one of which was that they held a valid interest in the property by quitclaim deed from one of the Selley heirs. Here, the Daweses argued that they established a more colorable claim to title than the Fields, or at least had an interest against the Fields, because the Fields' purchase of the deed from the Estate's personal representative was ineffective where the probate had already closed and the Estate representative's interest had passed to the heirs.
The trial court determined that neither deed conveyed an interest in the parcel because record title never properly vested in Selley. But it did not find that record title was irrelevant under any theory of the case. Further, although we agree that mutual recognition and acquiescence renders record title irrelevant, this is a hindsight argument because at the time the Daweses filed the lis pendens, it was unknown that the Fields would prevail on this theory. See, e.g., Keystone Land Dev. Co. v. Xerox Corp., 353 F.3d 1070, 1075-76 (9th Cir. 2003) (finding the district court erred in concluding that filing a lis pendens was not substantially justified on the basis that the claimant should have known that his alleged contract violated the statute of frauds because the claimant could have advanced another theory on which his opponent would be prevented by estoppel from relying on the statute of frauds).
The trial court's decision not to award the Fields fees under the lis pendens statute due to the parties' mutual mistake simply reflects the fact that both parties pursued record title as a path to ownership when neither knew which, if any, legal theory would ultimately be successful. Therefore, the trial court did not abuse its discretion when it decided not to award the Fields damages under RCW 4.28.328.
Damages Under RCW 64.12.030 for Destroyed Vegetation
Finally, the Fields claim damages under RCW 64.12.030 for Ronald Dawes's poisoning of their trees and shrubs. They argue that the trial court erred by refusing to award damages on the basis that Dawes's actions were consistent with a claim of ownership.
Under RCW 64.12.030, a party may recover treble damages for injury to a tree or shrub on their land. Judgment is limited to single damages where a defendant had probable cause to believe that the land on which such trespass occurred was his own. RCW 64.12.040. But where a person deliberately and intentionally destroys trees and other property in an area with knowledge of a bona fide boundary dispute, he cannot justify his act on the basis that he had probable cause to believe he owned the land and he is subject to treble damages. Mullally v. Parks, 29 Wn.2d 899, 911, 190 P.2d 107 (1948).
The Fields reported the poisoning incident on June 10, 2001, approximately one month before the Daweses filed suit against them. But under Mullally, a party need only be appraised that the other party disputes the boundary and then act with that knowledge. 29 Wn.2d at 911. There is no real question here that Ronald Dawes was aware of the boundary dispute with the Fields as of June 2001, because he took issue with the Fields' activities starting in 1997 and also testified to discussing the matter with Mary Ann Field in 2000.
The police report of the incident, describing damage to a 1,200-square-foot area in what the Fields treated as their front yard, also belies Dawes's claim that he minimally applied weed killer to the area. The Fields testified that the poison killed numerous trees, shrubs, and ferns, including the area where they kept ducks.
The trial court's finding of fact 21 conflates the Fields' claim for intentional infliction of emotional distress with their claim for destruction of vegetation under RCW 64.12.030, applies the wrong standard of law, and fails to address the RCW 64.12.030 claim in its own right. The evidence showed that Dawes caused damage to the Fields' trees and shrubs without authority, that the area was the subject of a bona fide boundary dispute, and that Dawes was aware of the dispute; this is all that is required to recover damages under RCW 64.12.030, and Dawes may not hide behind even a reasonable belief of ownership. See Mullally, 29 Wn.2d at 911. The trial court thus abused its discretion by failing to award damages under RCW 64.12.030. See Gildon v. Simon Prop. Group, Inc., 158 Wn.2d 483, 494, 145 P.3d 1196 (2006) (a trial court abuses its discretion by applying the wrong legal standard or basing its ruling on an erroneous view of the law).
Finding of fact 21 reads:
The Fields sought $5,000 in damages to "clean up the mess and replace the plants." RP (Feb. 28, 2006) at 1313. The law provides for restoration or replacement costs as damages for injury to or destruction of residential trees or shrubs. See Sherrell v. Selfors, 73 Wn. App. 596, 603, 871 P.2d 168 (1994). Therefore, we remand to the trial court for an appropriate award of damages to the Fields for injuries incurred as a result of Ronald Dawes's application of poison to their trees and shrubs.
We reverse and remand for an award of damages under RCW 64.12.030. We affirm otherwise.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J., VANDEREN, J., concur.
Mr. Dawes did some mean-spirited things to the Fields, many of which came very close to being actionable, the most disturbing being the application of a chemical agent that caused plants along the south side of the road to die. That action may arguably be consistent with a claim of ownership, based upon a misunderstanding about the legal title to the Selley Parcel and, specifically, the legal significance of the exclusion of the south 30 feet of that property identified in the deed by which the Daweses obtained title to their property. The Court cannot find that there was intentional infliction of emotional distress of such a nature over such a period of time that would justify a finding as defined in Washington law.
CP at 1122-23. The trial court found that the Fields failed to establish their claim for intentional infliction of emotional distress, but it did not find that Dawes did not harm plants south of the roadway. To the contrary, it found that Dawes did so with "mean-spirited" intent.