Opinion
No. 36487-5-II.
July 22, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-2-00305-6, Chris Wickham, J., entered June 8, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Bridgewater, J.
UNPUBLISHED OPINION
This lawsuit is Amedeo Nappi's third attempt to gain an easement over his neighbors' property. The trial court granted summary judgment to his neighbors, James Brazil, Cristy and John Doe Gunderson, and Michael and Nannette Rogers, because earlier lawsuits conclusively settled the matter. The trial court also awarded attorney fees to the neighbors under CR 11 and RCW 4.84.185 as a sanction for Nappi's frivolous lawsuit.
Nappi appeals the summary judgment dismissal and sanctions. He also asserts that the trial court erroneously denied CR 11 sanctions against Gunderson on the theory that Gunderson frivolously moved to join Brazil as a necessary party. The respondents also request attorney fees and costs on appeal. We hold that Nappi is collaterally estopped from maintaining this lawsuit and, therefore, the trial court did not err when it granted summary judgment to his neighbors. We also hold that this lawsuit and appeal are frivolous and, therefore, affirm the trial court's award of attorney fees and costs. We award attorney fees and costs on appeal.
Brazil also raises this argument in his brief and further asserts that the trial court erred when itdenied him attorney fees under RCW 8.24.030. But Brazil failed to comply with RAP 5.1(d), which mandates that "[a] party seeking cross review must file a [timely] notice of appeal or a notice for discretionary review." Accordingly, we may not and do not address his arguments on the merits.
FACTS
Properties
At issue here are five Olympia properties on a rectangular area of land that is divided into quadrants. Brazil owns the northwest quadrant. Nappi owns the northeast quadrant. Otto Krocker owns the southeast quadrant. And the southwest quadrant is sub-divided into two lots: Gunderson owns the eastern half, while Rogers owns the western half. Waddell Creek Road runs north-south along the western edge of Brazil's and Rogers's properties. Thus, Nappi does not have direct access to Waddell Creek Road or any other public road.
Since before 1985, Nappi has owned a 30-foot wide, recorded easement to access Waddell Creek Road. This easement begins at the four corners of the quadrant and runs east-west on Rogers's and Gunderson's lots along the property line that they share with Brazil.
Nappi does not want to use his easement but, instead, wants to access his property through a developed driveway that runs roughly east-west through Rogers's and Gunderson's land. This driveway links Waddell Creek Road to Rogers's property and runs just south of Nappi's easement. The driveway enters the northern area of Gunderson's property and then veers in a southeasterly direction into roughly the middle of the west edge of Krocker's property. Property Owners
Nappi also alleged that it is not feasible to create an ingress and egress easement to the north of his property because that area has standing water during rainy months.
The properties have changed owners since this series of litigation began in 1985. Rogers's property was owned by Roger and Vickie Rogerson. And Nappi once owned the entire northern half of the disputed area. But Nappi and his wife divorced in 1994 and she was awarded the northwest quadrant, which borders Waddell Creek Road, while Nappi retained the northeast quadrant. Nappi did not obtain an easement when the land transferred to his ex-wife. She sold the property to Brazil in 1999. Prior Lawsuits
Two prior lawsuits and one settlement involved the issue of an easement for ingress and egress between Waddell Creek Road and Nappi's property. The first is a 1985 lawsuit in which the Rogersons' (then owner of Rogers's property) sued Nappi and his wife for trespassing on their driveway. Nappi countersued, alleging that he had a prescriptive easement over the driveway. Nappi lost. A jury found that he had trespassed on the driveway and failed to establish that he had a prescriptive easement over the Rogersons' land. The trial court judge entered an order for permanent injunction "from encroaching on, traveling on or placing any objects or property on the real property described [as the current road across the Rogersons' property]." Clerk's Papers (CP) at 120. The trial court acknowledged that Nappi had a 30-foot wide easement along the northern border of the Rogersons' property.
The trial court wrote that the easement "runs north on the easterly most border of the Rogersons' property." CP at 121. According to the maps in our record and the parties' undisputed admissions, those directions are incorrect but the inaccurate description does not affect this appeal.
The second lawsuit began in 2000, after Brazil purchased the northwest quadrant property from Nappi's ex-wife. Nappi sued Brazil to obtain (1) an easement over Brazil's property between Waddell Creek Road and Nappi's property for ingress and egress and (2) ownership or an easement for a well on Brazil's property. Nappi lost on summary judgment on the first ground. The trial court held that there was no easement for ingress and egress through Brazil's property and dismissed this claim with prejudice.
Nappi and Brazil settled the well dispute. Brazil granted a 900-square foot easement in the southeast corner of his property for Nappi to use as a well and for ingress, egress, and utilities. The trial court issued an order and judgment quieting title and granting the easement. The court ruled, "Except as provided herein, plaintiff Nappi and his successors in interest have no right to easement on defendant Brazil's property for any purpose." CP at 136. Procedure
In the current action, Nappi tried again to obtain an easement over the driveway traversing property currently owned by Gunderson and Rogers. He petitioned for an easement by necessity under ch. 8.24 RCW, naming Gunderson, Rogers, and two banks as respondents. Nappi asserted that his property was landlocked but also explained that it would be expensive to develop his existing easement into a road. The trial court granted Gunderson's motion to join Brazil as a necessary party to the litigation.
Gunderson moved for summary judgment, arguing that the lawsuit was barred under the doctrines of res judicata and collateral estoppel. The trial court granted summary judgment to all defendants in an oral ruling:
Our record does not contain a written summary judgment ruling.
[B]ased upon the configuration of the various parcels involved in this case, in order for Mr. Nappi to proceed over the Gunderson property, he would have to then proceed over either the Rogerson or Brazil properties. And as counsel have pointed out, he has already litigated his rights to proceed over those properties, and the Court in each of those cases has ruled against him.
That being the case, it appears that there is no way that Mr. Nappi could prevail in this case. The only caveat to that might be the right to easement by necessity, for which there is a very strong doctrine in support of that proposition in this state.
Yet, I note that on the map that has been made part of this record, there is an easement delineated that would service all of these properties, and it apparently is available to the parcel that Mr. Nappi either owns or is asserting rights to.
Mr. Nappi has indicated that it would be expensive to develop that easement and make it usable for his parcel, but I'm not aware of any authority that gives him the right to proceed over other properties, which might be less expensive for him.
What is most persuasive in this court is the prior litigation involving the two parcels, which border Waddell Creek Road. And because of those orders, Mr. Nappi is conclusively barred from proceeding either over the Gunderson, Brazil, or Rogerson-now-Rogers properties.
All defendants in this case are entitled to an order of dismissal.
Report of Proceedings (Oct. 6, 2006) at 23-24.
Brazil and Gunderson then moved for attorney fees and costs as sanctions for the filing of a frivolous lawsuit, citing RCW 4.84.185 and CR 11. The trial court granted the motion. Nappi and Brazil also moved for CR 11 sanctions against Gunderson for improperly moving to join Brazil as a necessary party to the lawsuit. The trial court denied that motion. Nappi then requested reconsideration, which the trial court denied.
Nappi appeals.
ANALYSIS
Summary Judgment Standard of Review
On an appeal from summary judgment, we engage in the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004) (citing Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993)). Our standard of review is de novo. Hisle, 151 Wn.2d at 860. Summary judgment is appropriate only 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). We construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005) (citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990)).
On summary judgment, the moving party bears the burden of demonstrating that there is no genuine issue of material fact. Atherton, 115 Wn.2d at 516. "If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute." Atherton, 115 Wn.2d at 516. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). If the nonmoving party fails to demonstrate that material facts are in dispute, then summary judgment is proper. Atherton, 115 Wn.2d at 516.
Res Judicata
Gunderson initially argues that summary judgment was proper because the doctrine of res judicata bars this lawsuit. But we hold that res judicata does not apply.
We review de novo whether res judicata bars an action. DeTray v. City of Olympia, 121 Wn. App. 777, 784-85, 90 P.3d 1116 (2004). Res judicata bars an action when a prior judgment has a concurrence of identity in four respects with a subsequent action. Rains v. State, 100 Wn.2d 660, 663, 674 P.2d 165 (1983). There must be identical (1) subject matter, (2) cause of action, (3) persons and parties, and (4) quality of the persons for or against whom the claim is made. Rains, 100 Wn.2d at 663 (citing Seattle-First Nat'l Bank v. Kawachi, 91 Wn.2d 223, 588 P.2d 725 (1978)). The doctrine does not bar claims arising out of different causes of action and it is not intended "'to deny the litigant his or her day in court.'" Hisle, 151 Wn.2d at 865 (quoting Schoeman v. N.Y. Life Ins. Co., 106 Wn.2d 855, 859, 726 P.2d 1 (1986)). A judgment is res judicata as to every question that was properly a part of the matter in controversy, but it does not bar litigation of claims that were not in fact adjudicated. Seattle-First Nat'l Bank, 91 Wn.2d at 226.
Here, the 1985 litigation between the Rogersons and Nappi was not res judicata as to this action. The Rogersons sued Nappi and his wife for trespass. In 1985, Nappi owned Brazil's current property and had direct access to the main road but continued to use the driveway across the Rogersons' (now Rogers's) property. Thus, during that lawsuit, Nappi did not and could not have asserted a cause of action for an easement by necessity because his property was not landlocked. Nappi now argues that the subdivision of his lots landlocked his current property. The causes of action are not identical and the 1985 judgment does not preclude Nappi's lawsuit for an easement by necessity over Rogers' and Gunderson's land.
Similarly, the 2000 lawsuit between Nappi and Brazil does not preclude this lawsuit. The trial court's order conclusively settles the issue of whether Nappi has any type of ingress-egress easement over Brazil's property. But the 2000 and current lawsuits are not identical because (1) Rogers, Gunderson, or their predecessors in interest were not parties to the Nappi-Brazil litigation and (2) the subject matter and cause of action differ because the Nappi-Brazil lawsuit involved an easement over Brazil's property and the current litigation involves an easement over Rogers's and Gunderson's driveway. We hold that res judicata does not operate here. Collateral Estoppel
Gunderson further argues that summary judgment was proper because, as a matter of law, the doctrine of collateral estoppel prevents Nappi from relitigating this issue. We agree.
We review de novo whether collateral estoppel applies. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004). Collateral estoppel bars the relitigation of an issue by a party who has had a full and fair opportunity to present his or her case, even if the subsequent litigation presents a different claim or cause of action. In re Marriage of Mudgett, 41 Wn. App. 337, 342, 704 P.2d 169 (1985). The doctrine's purpose is to achieve finality of disputes, promote judicial economy, and prevent harassment of and inconvenience to litigants. Hanson v. City of Snohomish, 121 Wn.2d 552, 561, 852 P.2d 295 (1993).
The doctrine applies only if four basic requirements are met: (1) the identical issue was decided in the prior action, (2) the first action resulted in a final judgment on the merits, (3) the party against whom preclusion is asserted was a party to or in privity with a party to the prior adjudication, and (4) application of the doctrine does not work an injustice. Hanson, 121 Wn.2d at 562; State v. Mullin-Coston, 152 Wn.2d 107, 114, 95 P.3d 321 (2004) (quoting State v. Bryant, 146 Wn.2d 90, 98-99, 42 P.3d 1278 (2002)).
Here, all four requirements are met. First, the identical issue was decided in the 1985 and 2000 lawsuits. Those lawsuits resolved whether Nappi has an easement of ingress and egress over Brazil's property (2000) and the developed driveway on Rogers' and Gunderson's properties (1985). Second, the first two actions resulted in final judgments on the merits. The 1985 lawsuit concluded in a jury verdict and a permanent injunction preventing Nappi from using Rogers's and Gunderson's developed driveway. Similarly, the 2000 lawsuit ended in a dismissal with prejudice of Nappi's claim for an easement for ingress and egress over Brazil's property. Third, Nappi is the party against whom preclusion is asserted and he was a party in the two prior adjudications.
Last, application of the doctrine will not work an injustice. Nappi is not landlocked because he already has an easement for ingress and egress to his property. The respondents agree that Nappi has a right to develop this easement into a driveway. He asserts development would be very expensive because the easement is on a slope. But Nappi does not cite any law, and we find none, for the proposition that a property owner may obtain an easement on the sole ground that his existing easement is expensive or inconvenient to use. See William B. Stoebuck John W. Weaver, 17 Washington Practice: Real Estate: Property Law §§ 2.3-2.8, at 86-110 (2nd ed. 2004) (describing various ways in which easements are created). Thus, as a matter of law, Nappi could not prevail if the case proceeded to trial. The application of collateral estoppel does not work an injustice.
We hold that Nappi is collaterally estopped from asserting this easement by necessity claim. Accordingly, the trial court properly granted summary judgment to Rogers, Gunderson, and Brazil.
Attorney Fees at Trial Court
Nappi appeals the trial court's award of attorney fees and costs as a sanction for bringing a frivolous lawsuit under CR 11 and RCW 4.84.185. Nappi also argues that the trial court erred when it declined to enter CR 11 sanctions against Gunderson for frivolously moving to join Brazil as a necessary party.
We review a trial court's decision about whether to award attorney fees under CR 11 or RCW 4.84.185 for manifest abuse of discretion. Fluke Capital Mgmt. Servs. Co. v. Richmond, 106 Wn.2d 614, 625, 724 P.2d 356 (1986); Skimming v. Boxer, 119 Wn. App. 748, 754, 82 P.3d 707, review denied, 152 Wn.2d 1016 (2004). A court may award CR 11 sanctions if an action is not well grounded in fact or warranted by existing law and the attorney or pro se litigant who signed the pleading failed to conduct a reasonable inquiry into the action's factual or legal basis. CR 11; Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992).
Under RCW 4.84.185, a court may require a party to pay the prevailing party reasonable expenses, including attorney fees, incurred in a frivolous action. The fact that the complaining party ultimately does not prevail is not dispositive. Roeber v. Dowty Aerospace Yakima, 116 Wn. App. 127, 142, 64 P.3d 691, review denied, 150 Wn.2d 1016 (2003). But a lawsuit is frivolous when it cannot be supported by any rational argument on the law or facts. Daubner v. Mills, 61 Wn. App. 678, 684, 811 P.2d 981 (1991).
A. Sanctions Against Nappi
Nappi argues that the trial court abused its discretion when it sanctioned him under CR 11 and RCW 4.84.185. We disagree.
Nappi signed several pleadings that are not warranted by the facts or existing law under CR 11. Nappi asked to use Rogers' and Gunderson's developed driveway despite the fact that, after a jury trial, a trial court had permanently enjoined him from doing so. And the law does not support his contention that he is entitled to an easement by necessity simply because his existing easement would be expensive to develop. A reasonable inquiry into the action's factual and legal basis would reveal this conclusion. For the same reasons, this action was frivolous under RCW 4.84.185. In light of the 1985 suit, no rational argument supports Nappi's claims and, therefore, the trial court had authority to award fees and costs under RCW 4.84.185. The trial court did not abuse its discretion in doing so.
B. No Sanctions Against Gunderson
Nappi also argues that the trial court erred when it declined to enter CR 11 sanctions against Gunderson for frivolously moving to join Brazil as a necessary party. This argument also fails.
Nappi joined in Brazil's motion for CR 11 sanctions against Gunderson.
Despite the 1985 and 2000 lawsuits, Nappi commenced this action. Gunderson's motion to join Brazil was not frivolous. Under RCW 8.24.015, the trial court may join as a party "the owner of any land surrounding and contiguous to the property which land might contain a site for the private way of necessity." Brazil owned land surrounding and contiguous to the property on which Nappi sought an easement. The facts and existing law warranted Gunderson's motion to join Brazil and, therefore, the motion did not violate CR 11.
Attorney Fees On Appeal
The respondents characterize Nappi's appeal as frivolous and contend that we should award them attorney fees and costs on appeal under RCW 4.84.185 and RAP 18.9(a). In determining whether an appeal is frivolous, we are guided by the following considerations:
Brazil complied with RAP 18.1(b). He requested fees in a separate section of his brief and cited case law regarding frivolous appeals. Gunderson requested fees in a separate section of his brief but cited a general rule that this court may award sanctions if any legal or equitable principal allows doing so. Rogers, writing a two-page pro se brief, did not specifically request fees. He did, however, maintain that the "claims asserted by Appellant remain frivolous." Br. of Resp't Rogers at 4. To avoid injustice, we will consider Rogers's brief, in conjunction with Brazil's and Gunderson's briefs, as sufficient to conform to RAP 18.1(b). See RAP 1.2(a) (appellate court rules are "liberally interpreted to promote justice and facilitate the decision of cases on the merits"); see also RAP 18.9(a) (allowing court to award attorney fees and costs for frivolous appeal on its own motion).
(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.
Tiffany Family Trust v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005) (quoting Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wn.2d 427, 442-43, 730 P.2d 653 (1986)).
This appeal is frivolous. Nappi presents no new issues or arguments on appeal and his litigation was frivolous below. The trial court and respondents explained to Nappi repeatedly, and correctly, that there is no possibility that he could prevail in this claim. Nappi is collaterally estopped from litigating this issue. And if his claim were addressed on the merits, he could not prevail. Nappi already has an easement for ingress and egress to Waddell Creek Road and no law supports his theory that he is entitled to another easement simply because it would be expensive to develop his existing easement. See 17 Washington Practice: Real Estate: Property Law §§ 2.3-2.8, at 86-110. There are no debatable issues upon which reasonable minds might differ and the appeal is totally devoid of merit. Moreover, declining to award attorney fees would be unjust. Nappi has dragged the respondents into this appeal despite earlier litigation involving the same property and the sound trial court ruling that the litigation is frivolous. Accordingly, we award reasonable attorney fees and costs to respondents.
We affirm.
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.
BRIDGEWATER, J. and VAN DEREN, C.J., concur.