Opinion
No. 49308-0-II
08-15-2017
ZONNEBLOEM, LLC, a Washington limited liability company, Mandl Holdings, LLC, a Washington limited liability company, Respondents/Cross-Appellants, v. BLUE BAY HOLDINGS, LLC, a Washington limited liability company, Appellant/Cross-Respondent.
Averil Budge Rothrock, Milt Reimers, Schwabe Williamson & Wyatt PC, 1420 5th Ave., Ste. 3400, Seattle, WA, 98101-4010, for Appellant/Cross-Respondent. David P. Horton, Templeton Horton Weibel PLLC, 3212 N.W. Byron St., Ste. 104, Silverdale, WA, 98383-9154, for Respondents/Cross-Appellants.
Averil Budge Rothrock, Milt Reimers, Schwabe Williamson & Wyatt PC, 1420 5th Ave., Ste. 3400, Seattle, WA, 98101-4010, for Appellant/Cross-Respondent.
David P. Horton, Templeton Horton Weibel PLLC, 3212 N.W. Byron St., Ste. 104, Silverdale, WA, 98383-9154, for Respondents/Cross-Appellants.
PART PUBLISHED OPINION
Maxa, A.C.J. ¶1 Blue Bay Holdings, LLC appeals the trial court's summary judgment order dismissing its damages claim against Zonnebloem, LLC and Mandl Holdings, LLC for interference with a prescriptive easement that Blue Bay claimed over Zonnebloem's and Mandl's properties. Blue Bay alleged that its prescriptive easement followed the historical route of an electric power line that went from a power pole on the edge of Zonnebloem's parking lot property, across the Mandl building, and to Blue Bay's building.
¶2 After Blue Bay demolished an existing structure and replaced it with a new building, it asked Puget Sound Energy (PSE) to reconnect the power line to its new building. But PSE required a written easement from Zonnebloem and Mandl before it would reconnect the line, even if Blue Bay had a prescriptive easement along the power line's historical route. Zonnebloem and Mandl could not agree with PSE on the easement's terms, and Blue Bay was required to obtain power through a different route at significant expense. Blue Bay asserted that Zonnebloem and Mandl's refusal to grant an express easement to PSE constituted a wrongful interference with Blue Bay's use of its claimed prescriptive easement.
¶3 On summary judgment, the trial court dismissed Blue Bay's claim for damages against Zonnebloem and Mandl for wrongful interference with the claimed prescriptive easement. After a bench trial, the court ruled that Blue Bay had established a prescriptive easement.
¶4 In the published portion of this opinion, we hold that although an owner of property subject to an easement has an obligation to not unreasonably interfere with the use of an easement, as a matter of law Zonnebloem and Mandl's refusal to grant an express easement to PSE for an area broader than the prescriptive easement did not constitute unreasonable interference. Therefore, we affirm the trial court's dismissal on summary judgment of Blue Bay's claim for wrongful interference with its prescriptive easement.
¶5 In the unpublished portion of this opinion, we address and reject Zonnebloem and Mandl's claim that the trial court erred in ruling that Blue Bay had a prescriptive easement over their properties and Blue Bay's claim that the trial court erred in ruling that Mandl had acquired a portion of Blue Bay's property by adverse possession. Accordingly, we affirm the trial court on all issues on appeal.
FACTS
Power Access to Blue Bay's Property
¶6 Blue Bay and Mandl own adjoining commercial buildings on Front Street in Poulsbo, and Zonnebloem owns a parking lot located behind those buildings. Historically, a line from a power pole on Zonnebloem's parking lot provided electric power to both the Mandl building and the Blue Bay building. The line connected to the Mandl building before running down the side of that building and connecting to the Blue Bay building. When Blue Bay demolished the existing building on its property, it disconnected the power line.
¶7 Blue Bay subsequently requested that PSE reconnect the power line to its new building. But PSE required a written easement for an area two feet on either side of the power line as it ran from the power pole on the Zonnebloem parking lot to the side of Blue Bay's building. Zonnebloem and Mandl negotiated with PSE, but PSE would not agree to Zonnebloem and Mandl's request to include a termination clause in the easement. Therefore, no easement was executed, PSE would not reconnect the power line along the historical route, and Blue Bay was forced to install a power connection along a different route at a cost of over $50,000. Quiet Title Lawsuit
¶8 In October 2013, Zonnebloem and Mandl filed a complaint against Blue Bay regarding certain property disputes. Blue Bay filed a counterclaim, alleging that it had a prescriptive easement for the power line from the power pole on the Zonnebloem property to the Blue Bay building. Blue Bay also asserted a damages claim based on the allegation that Zonnebloem and Mandl's refusal to grant an express easement with PSE unreasonably interfered with Blue Bay's claimed prescriptive easement.
¶9 Zonnebloem and Mandl filed a motion for summary judgment on Blue Bay's damages claim. The trial court granted summary judgment and dismissed Blue Bay's damages claim for interference with the claimed prescriptive easement.
¶10 Blue Bay appeals the trial court's summary judgment dismissal of its damages claim.
ANALYSIS
A. SUMMARY JUDGMENT STANDARD
¶11 We review summary judgment orders de novo. Keck v. Collins, 184 Wash.2d 358, 370, 357 P.3d 1080 (2015). On summary judgment, we construe all evidence and reasonable inferences in favor of the nonmoving party. Id. Summary judgment is appropriate when the record shows "no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." CR 56(c) ; see Keck, 184 Wash.2d at 370, 357 P.3d 1080. A fact is material if it affects the case's outcome. Keck, 184 Wash.2d at 370 n.8, 357 P.3d 1080. A genuine issue of material fact exists if the evidence would be sufficient for a reasonable jury to find in favor of the nonmoving party. Id.at 370, 357 P.3d 1080. "If reasonable minds can reach only one conclusion on an issue of fact, that issue may be determined on summary judgment." Sutton v. Tacoma Sch. Dist. No. 10, 180 Wash.App. 859, 865, 324 P.3d 763 (2014).
¶12 On summary judgment, the moving party has the initial burden to show there is no genuine issue of material fact. Lee v. Metro Parks Tacoma, 183 Wash.App. 961, 964, 335 P.3d 1014 (2014). A moving defendant meets this burden by showing that there is an absence of evidence to support the plaintiff's case. Id. Once the moving party has made such a showing, the burden shifts to the nonmoving party to set forth specific facts that rebut the moving party's contentions and show a genuine issue of material fact. See Elcon Constr., Inc. v. E. Wash. Univ., 174 Wash.2d 157, 169, 273 P.3d 965 (2012).
B. CLAIM FOR INTERFERENCE WITH A PRESCRIPTIVE EASEMENT
¶13 Blue Bay argues that the trial court erred in dismissing its damages claim for wrongful interference with its claimed prescriptive easement, which it argues occurred when Zonnebloem and Mandl refused to grant a written easement to PSE. We disagree.
Zonnebloem and Mandl initially argue that Blue Bay did not preserve this issue because it cites different authorities on appeal than it cited in the trial court. But RAP 2.5(a), which bars errors raised for the first time on appeal, does not prohibit parties from citing new authorities on appeal. See Greenfield v. W. Heritage Ins. Co., 154 Wash.App. 795, 801, 226 P.3d 199 (2010). Because Blue Bay clearly raised this issue before the trial court, it was preserved for appeal.
1. Legal Principles
¶14 An easement is a nonpossessory right to use the land of another. Maier v. Giske, 154 Wash.App. 6, 15, 223 P.3d 1265 (2010). The person who benefits from an easement, known as the easement holder or dominant estate owner, has a property interest in the land subject to the easement, known as the servient estate. M.K.K.I., Inc. v. Krueger, 135 Wash.App. 647, 654-55, 145 P.3d 411 (2006). The easement represents a burden on the servient estate. Id.at 655, 145 P.3d 411.
¶15 In general, the owner of a servient estate may use his or her property in any reasonable manner that does not interfere with the easement holder's use of the easement. See Littlefair v. Schulze, 169 Wash.App. 659, 665, 278 P.3d 218 (2012). In addition, a servient estate owner may engage in reasonable conduct that affects access to the easement as long as that conduct does not unreasonably interfere with the easement holder's use. See Nw. Props. Brokers Network, Inc. v. Early Dawn Estates Homeowner's Ass'n, 173 Wash.App. 778, 792-93, 295 P.3d 314 (2013) (addressing the installation of a gate that restricted access to an easement). The reasonableness of a restraint depends on a balancing of the necessity of the restraint for the protection of the servient estate against the degree of interference with the easement holder's use. Id.at 793, 295 P.3d 314.
¶16 The Restatement (Third) of Property: Servitudesstates the same rule: "[T]he holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude." RESTATEMENT ( THIRD ) OF PROPERTY: SERVITUDES § 4.9 ( AM. LAW INST. 2000). Comment c to that section further states, "The owner of the servient estate is not entitled to interfere unreasonably with legitimate enjoyment of the servitude. ... Actions that make it more difficult to use an easement ... are prohibited by the rule stated in this section, unless justified by the needs of the servient estate." RESTATEMENT ( THIRD ) OF PROPERTY: SERVITUDES § 4.9 cmt. c.
¶17 An easement holder may obtain any appropriate remedy for unreasonable interference with an easement. See Bauman v. Turpen, 139 Wash.App. 78, 92, 160 P.3d 1050 (2007) (citing RESTATEMENT ( THIRD ) OF PROPERTY: SERVITUDES § 8.3 ). The Restatement states that one appropriate remedy is a claim for compensatory damages. RESTATEMENT ( THIRD ) OF PROPERTY: SERVITUDES § 8.3. This statement is consistent with the general rule that the holder of a nonpossessory interest in property can sue for damage to that interest. Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash.2d 442, 458, 243 P.3d 521 (2010).
¶18 Under these authorities, a servient estate owner is liable for damages if he or she unreasonably interferes with the easement holder's use of the easement. Further, in this context there is no legal difference between the rights of an express easement holder and the rights of a prescriptive easement holder. Therefore, we apply the same standard of liability to interference with a prescriptive easement.
2. Scope of Servient Estate Owner's Obligation
¶19 Blue Bay argues that the evidence presented at summary judgment showed that Zonnebloem and Mandl interfered with its claimed prescriptive easement by not granting an express easement over the Zonnebloem and Mandl properties to PSE. Blue Bay asserts that the reasonableness of Zonnebloem and Mandl's refusal to grant PSE an easement must be determined as a question of fact rather than on summary judgment.
¶20 Blue Bay's argument is based on the assumption that a servient estate owner has a legal obligation in certain circumstances to take affirmative action—in this case, to grant an express easement to PSE—to facilitate the easement holder's use of the easement. No Washington case has addressed this issue.
Blue Bay argues that because Zonnebloem and Mandl did not cite any controlling authority in support of its summary judgment motion, they did not meet their burden as the moving party and summary judgment should have been denied on that basis. This argument reflects a misunderstanding of summary judgment procedure. On summary judgment, the moving party has the initial burden to show there is no genuine issue of material fact. Lee, 183 Wash.App. at 964, 335 P.3d 1014. A moving defendant can meet this burden by showing that there is an absence of evidence to support the plaintiff's case. Id. But there is no requirement that a moving party present controlling legal authority to obtain summary judgment, particularly when no such authority exists.
¶21 Blue Bay relies on a California case, Dolnikov v. Ekizian, in which the court held that a servient estate owner could be liable for unreasonable interference with an easement for failing to take an affirmative action that was necessary for the easement holder to use the easement. 222 Cal.App.4th 419, 422, 165 Cal.Rptr.3d 658 (2013). In that case, the easement holder had an express easement for a driveway over the servient estate that had fallen into disrepair. Id.at 423-24, 165 Cal.Rptr.3d 658. The easement holder was constructing two houses on the parcel serviced by the easement and wanted to repair the easement driveway. Id. In order to obtain construction permits for the driveway, the easement holder needed the servient estate owner to sign a community driveway covenant. Id.at 424-25, 165 Cal.Rptr.3d 658. The servient estate owner repeatedly refused, resulting in a revocation of the driveway permits. Id. A jury found the servient estate owner liable for interfering with the easement, and the trial court awarded damages to the easement holder and required the servient estate owner to sign any necessary forms. Id.at 426-27, 165 Cal.Rptr.3d 658.
¶22 On appeal, the court held that a servient estate owner must not unreasonably interfere with the use of an easement, relying on the Restatement (Third) of Property: Servitudes § 4.9 and comment c. Dolnikov, 222 Cal.App.4th at 429-30, 165 Cal.Rptr.3d 658. The court stated that whether the servient estate owner's particular conduct constitutes an unreasonable interference with the easement is a question of fact. Id.at 430, 165 Cal.Rptr.3d 658. But the court concluded that the servient estate owner's refusal to sign the covenant was unreasonable and could constitute an unreasonable interference with the easement holder's use and enjoyment of the easement. Id.at 431, 165 Cal.Rptr.3d 658. ¶23 We acknowledge that, as in Dolnikov, there may be circumstances in which a servient estate owner can be liable for wrongful interference with an easement for failing to take a reasonable affirmative action to facilitate the easement holder's use of the easement. But the existence of such a rule does not resolve this case. The question here is whether Zonnebloem and Mandl's failure to take a specific affirmative action—granting an express easement to PSE—creates a genuine issue of material fact on wrongful interference with Blue Bay's prescriptive easement.
¶24 Two factors are significant here. First, by granting an express easement to PSE, Zonnebloem and Mandl would relinquish a valuable property right—part of the bundle of rights associated with fee ownership of property—to a third party. See Kiely v. Graves, 173 Wash.2d 926, 936, 271 P.3d 226 (2012). The facts here are significantly different than in Dolnikov, where the servient estate owner was required to undertake only a ministerial act to allow the easement holder to use the easement for a community driveway. Blue Bay provides no authority for the proposition that a servient estate owner can be subject to liability for failing to give up a property right to facilitate an easement holder's use of the easement.
¶25 Second, the easement that PSE requested and that Blue Bay demanded be granted was for an area broader than the area of use that created the prescriptive easement. Again, the facts here are significantly different than in Dolnikov, where the servient estate owner's requested act did not change the parameters of the easement. Generally, a trial court has no authority to change the location of an easement at the request of an easement holder. See Kave v. McIntosh Ridge Primary Road Ass'n, 198 Wash.App. 812, 820-21, 394 P.3d 446 (2017). Blue Bay provides no authority for the proposition that a servient estate owner can be subject to liability for failing to grant an express easement that is broader—covering a different location—than the existing prescriptive easement in order to facilitate the easement holder's use of the prescriptive easement.
¶26 Based on these two factors, we hold as a matter of law that (1) it was not unreasonable for Zonnebloem and Mandl to refuse to grant an express easement to PSE even though that refusal interfered with Blue Bay's use of its prescriptive easement, and (2) their refusal did not constitute an unlawful interference with Blue Bay's claimed prescriptive easement. Accordingly, we hold that the trial court did not err in granting summary judgment in favor of Zonnebloem and Mandl on Blue Bay's damages claim.
CONCLUSION
¶27 We affirm the trial court's dismissal on summary judgment of Blue Bay's damages claim for interference with its claimed prescriptive easement. We consider the remaining issues in the unpublished portion of this opinion. We affirm the trial court on all issues on appeal.
¶28 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
LEE, J.
SUTTON, J.