Opinion
No. 25977-3-III.
January 17, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-2-00593-1, Jerome J. Leveque, J., entered February 22, 2007.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Sweeney, C.J., and Schultheis, J.
Kelly Piper appeals an order granting summary judgment to Julie Zimmerman establishing a boundary line between the Zimmerman and Piper property. The trial court also denied a request for summary judgment by Ms. Piper asking the court to establish a property line that conformed to the City of Spokane Valley's setback requirements. On appeal Ms. Piper argues that summary judgment was improper because the new boundary line violates the City of Spokane Valley's five-foot setback requirement and ignores certain property covenants applicable to her property. We affirm the order granting summary judgment.
FACTS
On October 31, 2000, Julie Zimmerman bought a home located at 4720 E. 15th, in Spokane Valley, Washington. At that time, the home currently owned by Kelly Piper located at 4724 E. 15th, in Spokane Valley, Washington was owned by Benson and Kim McAbee. In the summer of 2003, Benson McAbee built a fence between the two adjoining houses. Plans for construction of the fence were not submitted to, nor approved by, the Home Owner's Architectural Committee as required by applicable property covenants and conditions. Nor was the fence discussed with Ms. Zimmerman. On August 25, 2004, the City of Spokane Valley passed Ordinance No. 04-033 (ordinance), which required homes like the McAbees' to have a five-foot setback requirement.
In November 2004, Ms. Piper bought the McAbees' home. In August 2005, Ms. Zimmerman hired the Kootenai County Surveyors to establish the property line between the two properties where the fence was located. The survey revealed that the fence constructed by Mr. McAbee encroached 5.2 feet onto Ms. Zimmerman's property.
Ms. Zimmerman asked Ms. Piper to reposition the fence to conform to the surveyed boundary line. Ms. Piper refused. Ms. Zimmerman filed this lawsuit to quiet title and establish that Ms. Piper was trespassing on her property. The trial court granted the summary judgment quieting title and recognizing the surveyed property line as the true and correct boundary. Ms. Piper appealed.
ANALYSIS
A. Summary Judgment
When reviewing an order for summary judgment, we engage in the same inquiry as the trial court. Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). All facts and reasonable inferences are considered in a light most favorable to the nonmoving party, while all questions of law are reviewed de novo. Berger v. Sonneland, 144 Wn.2d 91, 102-03, 26 P.3d 257 (2001). Summary judgment is appropriate where there are no disputed issues of material fact and the prevailing party is entitled to judgment as a matter of law. Sperr v. City of Spokane, 123 Wn. App. 132, 136, 96 P.3d 1012 (2004).
Ms. Piper argues that a Spokane Valley Ordinance precludes summary judgment. City of Spokane Valley Ordinance No. 04-033 requires five feet of setback for the type of home that Ms. Piper owns. The ordinance became effective on August 25, 2004.
Here, the five-foot setback requirement of the ordinance does not apply because the fence was constructed by Mr. McAbee in 2003. Ms. Piper's home was constructed sometime prior to 2003. Therefore, the appellant's home was constructed prior to the effective date of Ordinance No. 04-033, August 25, 2004. The City of Spokane Valley Department of Community Development in a letter to Ms. Piper stated: "As you are aware, permits are vested in the regulations in effect at the time application for the permit is made." Clerk's Papers (CP) at 166. Thus, the five-foot setback requirement does not apply to Ms. Piper's home.
Ms. Piper also argues that a covenant on her property creates an easement for all encroachments. Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for South Terrace Spokane County, Washington 7.2 (DCC) provides:
Each lot within the Property is hereby declared to have an easement over all adjoining lots and the Common Area for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, settlement or shifting of any building, or any other cause. . . . [H]owever, that in no event shall a valid easement for encroachment be created in favor of an owner or owners if said encroachment occurred due to the willful misconduct of said owner or owners.
CP at 38. DCC 8.14 provides: "All fences must be submitted to the Architectural Committee prior to construction and must be approved by the Committee as to size, location, color and location of materials." CP at 42.
Here, DCC 7.2 does not create an easement because the building of the fence on Ms. Zimmerman's property was not an "engineering error" or an "error in original construction." The fence was not built at the time of the house's original construction nor was it engineered in any manner or respect.
Willful misconduct occurred when Mr. McAbee constructed the fence without the approval of the Architectural Committee. "Willful means 'knowingly'; thus, willful neglect suggests intentional, conscious, or known negligence — a knowing or intentional mistake." Puget Sound Painters, Inc. v. State of Washington, 45 Wn.2d 819, 822, 278 P.2d 302 (1954). Under this definition, Mr. McAbee acted willfully in building the fence in violation of DCC 7.2 and 8.14, and thus no easement can be created for Ms. Piper.
On appeal, Ms. Piper in substance is asking the court to find that her argument regarding easements, covenants and set backs gives her the right to have the property line between the two properties adjusted so as to conform to the setback requirements established by the City of Spokane Valley. She asks that we send the case back to the trial court to allow further development of the facts to attempt to achieve that result. Summary judgment in favor of Ms. Zimmerman was proper. Ms. Piper has not provided the court with either citations or a legal theory that would allow the court to take a portion of Ms. Zimmerman's property to make up for another's mistake.
B. Frivolous Appeal
Ms. Zimmerman has asked for an award of attorney fees for a frivolous appeal. RAP 18.9(a) authorizes an award of attorney fees to a prevailing respondent in a frivolous appeal. Boyles v. Dep't of Retirement Sys., 105 Wn.2d 499, 508-09, 716 P.2d 869 (1986). An appeal is frivolous when there are no debatable issues upon which reasonable minds could differ and when the appeal is so totally devoid of merit that there was no reasonable possibility of reversal, or when the appellant fails to address the basis of the trial court's decision. Mahoney v. Shinpoch, 107 Wn.2d 679, 691-92, 732 P.2d 510 (1987). The record should be examined as a whole, and doubts should be resolved in favor of the appellant. Boyles, 105 Wn.2d at 508-09.
Ms. Zimmerman argues that Ms. Piper's appeal is totally devoid of merit or substance. Ms. Piper's appeal was tenuous at best. But in light of the existence of the ordinance and covenants relied on by Ms. Piper, and because all doubts regarding whether an appeal is frivolous should be resolved in favor of the appellant, Boyles, 105 Wn.2d at 508-09, we decline the respondent's request for sanctions.
CONCLUSION
We affirm the order granting summary judgment and deny the request for sanctions for filing a frivolous appeal.
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.