Opinion
No. 30484-8-II
Filed: May 10, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 01-2-01001-0. Judgment or order under review. Date filed: 06/03/2003. Judge signing: Hon. Anna M Laurie.
Counsel for Appellant(s), James Emmett Freeley, Freeley Nicolas LLC, State Sawyer Bldg Fl 2, 2120 State Ave NE, Olympia, WA 98506-6514.
Counsel for Respondent(s), Gregory John Wall, Attorney at Law, 1521 SE Piperberry Way, Port Orchard, WA 98366.
Reed's Meadow, LLC, (Meadow), appeals a summary judgment of dismissal of its lawsuit against Amy and Tad Herdman for trespassing and negligently causing a mudslide. We affirm.
FACTS
This case arises out of a mudslide that occurred on Meadow's unfenced seven-acre parcel located in a residential neighborhood near Bremerton. At one time, the property's southwest corner contained a large depression that served as a natural surface water drainage area. In the 1980s, then owner William Reed dumped approximately 30,000 yards of construction fill in the depression.
In 1997, Reed, Mervyn Richardson, and Jeff Bond formed Meadow, and Reed transferred land ownership to this entity. Meadow's purpose was to develop the land and construct concrete pads suitable for manufactured homes and recreational vehicles. Craig Baldwin, a certified civil engineer, drew the plans, and Kitsap County approved the development project.
In 1958, Reed purchased 11 acres. He later sold five lots. Meadow now owns the remaining seven acres.
As a part of this project, Meadow's employees built an asphalt road, graded the property, installed underground utilities, and built two retention ponds. A culvert transported water runoff to a grassy ditch located on the southeast portion of the property known as 'the swale.' Clerk's Papers (CP) at 113 (page 24). This swale was intended to transport water to the Kitsap County drainage system.
Meadow concedes that the land development increased surface water flow on the property.
To reach the County's drainage system, the water from Meadow's property ran down a shallow ditch, which abutted and ran parallel to the rear property line of the Herdmans, whose property adjoined part of Meadow's property.
In summer 1999, the Herdmans and Reed spoke about the development. The Herdmans had noticed cracks in the earth near the back of their property line and became concerned about the possibility of erosion. Reed expressed no concern.
Later, when Reed observed Tad Herdman on Meadow's property throwing a ball for a dog, he asked Herdman to leave and he complied. When Herdman returned with his dog on the following day, Reed again asked him to leave. In the course of their conversation, Herdman asked Reed whether he was going to do anything about the standing water in the swale. Reed responded that he was not going to change anything because the County had approved his plans.
Later, Reed averred in his deposition that, two or three months before the slide, Herdman told him that 'if the county doesn't do something about [the water], . . . I am going to do something about it. . . .' CP at 83 (page 31). Reed perceived this as a direct threat to damage Meadow's water drainage system.
On another occasion, Tad Herdman accused Reed of cutting bushes on his property, however, Herdman was mistaken about his property line. And when Reed watered the grass in the swale, the Herdmans' six-year-old daughter allegedly yelled: '[H]ey, stupid old man, stop that.' CP at 84 (page 34).
In September 1999, the Herdmans observed Meadow's employees using a pump to move surface water from the swale into the drainage ditch that bordered the Herdmans' property. Concerned that the excess water made their property muddy, the Herdmans called the County and the County ordered Meadow to stop pumping.
On December 8, 1999, a mudslide occurred involving the swale. An investigation into the cause of the slide revealed that the swale had a trench dug in it. The police and Meadow's employees saw human footprints in the mud and an existing foot path behind Meadow's and the Herdmans' property. Also, Reed and others observed a shovel leaning against the Herdmans' house.
Meadow filed a lawsuit against the Herdmans alleging that before the slide, they trespassed and negligently dug a small trench, approximately the width of a shovel, at the edge of the swale near the retention pond, causing the landslide.
The Herdmans answered and denied entering Meadow's property and digging a trench. They moved for summary judgment dismissing the case on the grounds that Meadow presented no evidence, direct or circumstantial, that the Herdmans dug the trench. In response, Meadow moved for partial summary judgment as to damages.
Tad Herdman admitted that he owned a number of shovels that he stored outside behind his house. He also admitted the existence of the foot path, and he said that he and the neighbors used it to walk their dogs.
In her declaration, Kristina Weller, a certified civil engineer specializing in geotechnical issues, stated that the ditch did not cause the mudslide and that the probable cause of this slide was water getting behind a loose mass of earth and with hydrostatic pressure pushing the dirt out. Weller based her statements on an examination of the photographs and other documentation of the slide and the area of where the slide occurred and one visit to the site.
Meadow countered with a declaration from Baldwin, the certified professional engineer who created the designs for the construction of the site development at Meadow. He opined that the trench caused the slide.
After reviewing these declarations and other documentation, the trial court granted the Herdmans' motion for summary judgment, finding that Meadow presented no evidence that the Herdmans dug the trench. The court noted:
The Herdmans moved to strike declarations of Richardson and Baldwin as inadmissible hearsay. The trial court denied the motion to strike the declarations in their entirety. But in its summary judgment order, the court noted that it considered 'the admissible portions of the affidavits,' without further detail. Report of Proceedings at 229.
'[T]he critical issue, from my perspective, is whether there is any admissible proof that Mr. Herdman's actions caused the trench.
. . . I'm going to say that the reasonable evidence, and the reasonable inferences therefrom, is the defendant's motion is well taken and I'm going to grant summary judgment in this matter.'
Report of Proceedings (RP) at 27.
The trial court also denied Meadow's motion for reconsideration. Meadow appeals.
ANALYSIS Summary Judgment
Meadow contends that the facts presented to the trial court raised a genuine issue of material fact whether the Herdmans dug the trench in the swale.
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). We must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.
A party may move for summary judgment by showing that the nonmoving party has failed to offer any evidence of a crucial element of the claim. Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 23, 851 P.2d 689, review denied sub nom., Guile v. Crealock, 122 Wn.2d 1010 (1993). This complete failure of proof concerning a crucial element renders the nonmoving party's other evidence irrelevant. Guile, 70 Wn. App. at 23.
The nonmoving party may not rely upon speculation or argumentative assertions that unresolved factual issues remain to resist summary judgment; rather, once the moving party has satisfied its burden, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437.
The parties dispute whether the trench caused the slide. Their experts' affidavits demonstrate a difference of opinion of the slide's cause. Nevertheless, even assuming that the trench caused the slide, there must be a material issue of fact whether the Herdmans dug the trench for Meadow's claims to survive summary. Thus, just as the trial court astutely discerned, we must review whether a material issue of fact exists that the Herdmans dug the trench, thus precluding summary judgment.
Meadow submitted the following undisputed facts to show the Herdmans' involvement: (1) a mudslide occurred; (2) the swale had a shovel-wide trench cut in it; (3) a shovel was found leaning against the Herdmans' house; (4) human footprints were observed in the mud; (5) a trail led through tall, wet grass from the trench; and (6) the trench cut behind the Herdmans' property. Meadow also argued that the Herdmans demonstrated a motive and a threat to dig the trench during their earlier contacts with Reed.
No one stated where it led.
Meadow also referred to an investigating police officer's statement, 'there's your guy,' made after he observed the shovel leaning against the Herdmans' home. CP at 100-01 (pages 36-37). As noted, the trial court entered an order that it reviewed only those admissible portions of the declarations. This statement, not introduced through the officer, comprises inadmissible hearsay and we do not consider it. ER 801, 804.
But shovel ownership, absent more, does not tend to show the Herdmans' involvement. The footprints in the mud were unidentified. That the trench was located in the back of Herdmans' property demonstrates nothing because Meadow's property was unfenced and anyone could have accessed it.
For example, no evidence in the record shows whether that shovel had fresh dirt on it or anything else indicating recent use.
Finally, the contacts between Herdman and Reed took place at least two months before the mudslide; these contacts do not raise an issue as to whether the Herdmans dug the trench. No evidence rises above mere speculation and conjecture. Reasonable minds could not differ and the trial court did not err in granting summary judgment.
Affirmed.
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 QUINN-BRINTNALL, C.J., Concur.