Opinion
No. 26742-3-III.
December 11, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 03-2-04057-1, Maryann C. Moreno, J., entered December 14, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Korsmo, J.
This is an appeal from a verdict in favor of the respondent on a claim of trespass to land and a request for damages. The appellants maintain that the trial judge improperly admitted evidence and that the respondent was not entitled to attorney fees as the prevailing party. We disagree on both counts and affirm the judgment entered on the verdict in favor of the respondent. We also award fees on appeal.
FACTS
Dmitriy and Lyubov Shulgan live next door to Spokane Valley Good Samaritan Village, a retirement village. Good Samaritan began constructing duplexes near their shared property line in the summer of 2002.
Good Samaritan asked the Shulgans for permission to level an outcropping of rock on the Shulgans' property near the property line. Leveling the outcropping would improve the view from two of Good Samaritan's duplexes. It would also let more light reach the duplexes. Good Samaritan told the Shulgans that its excavator would clear away the rock that fell onto the Shulgans' property during the excavation. The Shulgans permitted Good Samaritan to level the outcropping.
Good Samaritan hired an excavating company, Stolz, Inc., to level the outcropping. Stolz's subcontractor blasted the rock apart. Stolz then started to move the debris from the blast site. But, before Stolz could clear any debris from the Shulgans' property, the Shulgans' son told John Stolz not to enter the Shulgans' property or touch any of the debris that landed there. Stolz complied.
Mr. and Ms. Shulgan later sued Good Samaritan, Stolz, and Stolz's subcontractors for damages under theories of trespass and waste, negligence, and strict liability. Good Samaritan denied liability and alleged that the Shulgans prevented Stolz from entering the Shulgans' property to remove the blast debris.
The Shulgans moved in limine to exclude testimony of statements the Shulgans' son made to Mr. Stolz. The court denied the motion and admitted the testimony concluding it was "not being offered for the truth of the matter asserted." Report of Proceedings (RP) at 176.
At trial Mr. Stolz testified that his company did not clear the debris from the Shulgans' property because the Shulgans' son or family member ordered his company off of their property. Good Samaritan's executive director testified that he also received a letter from the Shulgans' attorney that directed that no one should enter or remove any blast debris from the Shulgans' property. The Shulgans objected to this testimony on the ground that it violated the best evidence rule. The court overruled the Shulgans' objection and allowed the testimony. The trial court also admitted the redacted original letter to Good Samaritan as an exhibit.
The jury found in favor of Good Samaritan. The trial court entered judgment for Good Samaritan and found that CR 68 (offer of judgment), RCW 4.24.630 (liability for damage to land of another), and RCW 4.84.010 (cost to prevailing party) entitled Good Samaritan to costs and attorney fees. The court awarded Good Samaritan $6,497.99.
DISCUSSION
Evidence — Statements of the Shulgans' Son
The Shulgans first assign error to the trial judge's refusal to exclude testimony of statements allegedly made by their son. They contend the testimony should have been excluded because Good Samaritan failed to show that their son was authorized to speak on their behalf.
We review a trial court's decision to admit evidence for abuse of discretion. City of Kennewick v. Day, 142 Wn.2d 1, 5, 11 P.3d 304 (2000).
Hearsay is generally not admissible. ER 802. "Hearsay" is testimony of an out-of-court statement that a party offers in court to prove the truth of the matter asserted. ER 801(c). Testimony of an out-of-court statement is not hearsay if it is offered for some other purpose. Patterson v. Kennewick Pub. Hosp. Dist. No. 1, 57 Wn. App. 739, 744, 790 P.2d 195 (1990). "Out-of-court statements introduced to show the effect on the listener regardless of their truth are not hearsay." Id.
Here, John Stolz testified that his excavation crew did not clean the blast debris that fell on the Shulgans' property because the Shulgans' "son . . . came out and told us, 'They DON't want you coming on here and touching it.'" RP at 195. The trial court allowed the testimony because "it's not being offered for the truth of the matter asserted." RP at 176.
Good Samaritan offered this statement to prove its effect on the excavators, i.e., why the excavators did not clean up the blast debris on the Shulgans' property. It did not offer the statement to show that the excavators were not allowed on the property. Mr. Stolz's testimony was, therefore, not hearsay. Henderson v. Tyrrell, 80 Wn. App. 592, 620, 910 P.2d 522 (1996).
Alternatively, the Shulgans assert that the trial court erred by admitting the challenged testimony as an admission by a party opponent under ER 801(d)(2). They claim that the trial court admitted the testimony, in part, because Good Samaritan established that the speaker had authority to speak for the Shulgans. Appellant's Br. at 29. But the record does not show that the court admitted the testimony as an admission by a party opponent.
Evidence — Lack of Complaints About Contractor
The Shulgans next argue that testimony that Stolz's other customers did not complain about Stolz's work was irrelevant and should not have been admitted.
Again, the decision to admit or exclude evidence is vested in the sound discretion of the trial court. Day, 142 Wn.2d at 5. Relevant evidence is admissible. ER 402. "Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Cotton v. Kronenberg, 111 Wn. App. 258, 273, 44 P.3d 878 (2002).
The testimony here showed that Stolz had adequately cleaned other blast sites. It also showed that Stolz used appropriate blasting methods. In short, the testimony tended to show that Stolz's construction practices were not negligent. It was, therefore, relevant to a central issue in this case. See ER 401 (evidence disproving a material fact is relevant).
Best Evidence — Letter to Good Samaritan
The Shulgans next argue that the court erred by admitting executive director James Droppers' testimony about a letter sent by the Shulgans' lawyer to Good Samaritan directing it not to come on the Shulgans' property. They argue that the testimony was not the best evidence and the letter was not listed as a proposed exhibit in Good Samaritan's exhibit list.
A party should produce an original writing when it seeks to prove the writing's contents. ER 1002; Rhyne v. Bates, 35 Wn. App. 529, 531, 667 P.2d 1131 (1983). But here the assignment of error is a bit of a tempest in a teapot. The original document was ultimately admitted into evidence and considered by the jury. Attorney Fees The final question presented here is whether the court had authority to award fees to Good Samaritan based on its offer of judgment (CR 68). There are no disputed facts and so the question is a question of law that we will review de novo. Schlener v. Allstate Ins. Co., 121 Wn. App. 384, 388, 88 P.3d 993 (2004).
The court can properly award costs to a defendant under CR 68 when a judgment finally obtained is not more favorable than a defendant's settlement offer. Reynolds v. Hicks, 134 Wn.2d 491, 502-03, 951 P.2d 761 (1998). Here, Good Samaritan offered to settle this case for $15,000. The offer was apparently rejected. And the jury returned a verdict in Good Samaritan's favor. The judgment was, of course, less than Good Samaritan offered because the Shulgans were awarded nothing. Good Samaritan is, then, entitled to costs under CR 68. See McConnell v. Mothers Work, Inc., 131 Wn. App. 525, 533-34, 128 P.3d 128 (2006) (awarded costs under CR 68).
"Costs" under CR 68 include attorney fees only if the statute underlying the cause of action defines costs as including attorney fees. Eagle Point Condo. Owners Ass'n v. Coy, 102 Wn. App. 697, 707, 9 P.3d 898 (2000). The Shulgans' underlying trespass action was based on RCW 4.24.630. And that statute defines costs as "including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs." RCW 4.24.630(1) (emphasis added).
The Shulgans maintain that RCW 4.24.630 entitles only a prevailing plaintiff to fees and costs, not a prevailing defendant. RCW 4.24.630(1) ("the person is liable for reimbursing the injured party for the party's reasonable costs"). But the central question here is whether the underlying statute provides for attorney fees as costs. And RCW 4.24.630(1) does.
CR 68 and RCW 4.24.630 authorize the trial court's decision to award Good Samaritan costs and attorney fees. And we award those fees and costs on appeal.
A majority of the panel has determined that 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.
SCHULTHEIS, C.J., and KORSMO, J., concur.