          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

GREGG SMITH and KELLY SMITH,        )           No. 74328-7-1
husband and wife,                   )
                                    )
                       Respondents, )
                                    )
               V.                   )           UNPUBLISHED OPINION
                                    )
LARRY L. PETERSON and SUSAN         )
PETERSON, husband and wife and the )
marital community thereof,          )
                                    )
                       Appellants.  )           FILED: March 6, 2017

      SCHINDLER, J. — This is the second appeal in this case. Larry and Susan

Peterson appeal the trial court order directing them to remove, modify, or relocate a

canopy on their dock that encroaches on the adjacent property of Gregg and Kelly

Smith. Because the court abused its discretion by ordering the removal, modification, or

relocation of the canopy without considering the equitable factors for encroachment, we

reverse and remand.

      The facts are set forth in our previous decision, Smith v. Peterson, 166 Wn. App.

1023, 2012 WL 432246, at *1, and will be repeated only as necessary. The Smiths and

the Petersons own adjacent properties on Lake Washington in Bellevue. A dock is

located near the two properties and extends west into Lake Washington. The dock has
No. 74328-7-1/2

an overhead canopy that extends north and south from both sides of the dock. The

canopy consists of a metal roof supported by three wooden pilings on each side of the

dock. The dock and the canopy have existed in this configuration for more than 50

years.

         In a 2008 quiet title action, the Smiths and the Petersons claimed an ownership

interest in the covered dock. Following a trial, the court concluded the dock and canopy

belonged to the Petersons. But because the survey showed the northern portion of the

canopy overhangs into the Smiths' property, the court concluded the three northern

pilings supporting the dock canopy belonged to the Smiths.

         In the first appeal, we affirmed the trial court's decision that(1) the Smiths had

not acquired an ownership interest in the dock through mutual recognition and

acquiescence,(2) presence of the canopy was insufficient to establish title to the

underlying shorelands by adverse possession, and (3) the Petersons did not establish a

prescriptive easement for use of the canopy. Smith, 2012 WL 432246, at *6-*7.

         On July 28, 2015, the Smiths filed a "Motion To Enforce Judgment or in the

Alternative To Modify Judgment Pursuant to CR 60." The Smiths sought an order

allowing removal or modification of the pilings. The Smiths also sought an order

directing the Petersons to "remove and/or modify their 'metal cover' so as not to

interfere with the Smiths use and enjoyment of their property, or encroach further on the

Smiths' property."

         The court granted the Smiths' motion and ordered the Petersons to "remove,"

"modify," or "relocate" the canopy. The court's order states, in pertinent part:

                 IT IS HEREBY ORDERED, ADJUDICATED and DECREED that
         plaintiff's motion is granted. The Court orders the Petersons to either (i)


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No. 74328-7-1/3

        remove, (ii) modify and/or (iii) relocate their metal covering or canopy on
        the northern covered moorage on or before June 1, 2016 so as to no
        longer rest on the Smith pilings and to no longer encroach or overhang
        upon the Smith's [sic] property.
                If the Petersons do not (i) remove, (ii) modify and/or (iii) relocate the
        metal covering or canopy on the northern covered moorage by June 1,
        2016, the Court further orders, that in compliance with its October 14,
        2010 Judgment, the Smiths are permitted to remove and/or modify the
        pilings on their property without further interference by the Petersons.

Collateral Estoppel and Res Judicata

        The Petersons argue collateral estoppel and res judicata bar the motion for an

order to remove or modify the pilings and the order directing them to remove, modify, or

relocate the canopy.1

        We review de novo whether collateral estoppel or res judicata applies to bar an

action. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d

957(2004); Berschauer Phillips Const. Co. v. Mut. of Enumclaw Ins. Co., 175 Wn. App.

222, 227, 308 P.3d 681 (2013). Collateral estoppel applies where:

       (1) the issue decided in the earlier proceeding was identical to the issue
       presented in the later proceeding;(2)the earlier proceeding ended in a
       judgment on the merits;(3) the party against whom collateral estoppel is
       asserted was a party to, or in privity with a party to, the earlier proceeding;
       and (4) application of collateral estoppel does not work an injustice on the
       party against whom it is applied.

Christensen, 152 Wn.2d at 307. Res judicata applies where the subsequent action

involves "(1) the same subject matter,(2)the same cause of action,(3)the same

persons or parties, and (4)the same quality of persons for or against whom the decision




         1 The Smiths filed a motion on the merits to affirm and submitted three declarations to this court in
support of the motion. The Petersons filed a motion to strike the declarations under RAP 9.11(a) as
evidence outside the record. A commissioner referred the motion to strike to the panel. Because the
three declarations are not necessary for our review, we do not consider them and grant the motion to
strike. Ha v. Signal Elec., Inc., 182 Wn. App. 436, 456, 332 P.3d 991 (2014).


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No. 74328-7-1/4

is made as did a prior adjudication." Williams v. Leone & Keeble, Inc., 171 Wn.2d 726,

730, 254 P.3d 818(2011).

       The party asserting collateral estoppel or res judicata bears the burden of

establishing that the doctrine applies. Christensen, 152 Wn.2d at 307; Hisle v. Todd

Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108(2004). Because the

Petersons do not identify or address any of the elements of collateral estoppel or res

judicata, they do not carry their burden of establishing that either collateral estoppel or

res judicata applies. See also In re Recall of Washam, 171 Wn.2d 503, 515, 257 P.3d

513(2011)("'We do not consider claims insufficiently argued by the parties.' ")(quoting

State v. Ford, 137 Wn.2d 472, 477 n.1, 973 P.2d 452(1999)); Duvall v. Nelson,

Wn. App.      , 387 P.3d 1158, 1168(2017)("We will not consider an inadequately

briefed argument.").

Law of the Case

       The Petersons assert the court disregarded our decision in Smith and the law of

the case by ordering them to remove, modify, or relocate the canopy.

       Under the law-of-the-case doctrine,"'when a court decides upon a rule of law,

that decision should continue to govern the same issues in subsequent stages in the

same case.'" Pepper v. United States, 562 U.S. 476, 506, 131 S. Ct. 1229, 179

L.Ed.2d 196(2011)(quoting Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382,

75 L. Ed. 2d 318 (1983)); Musacchio v. United States,         U.S.     , 136 S. Ct. 709,

716, 193 L. Ed. 2d 639(2016); Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844

(2005). "The doctrine 'expresses the practice of courts generally to refuse to reopen

what has been decided,' but it does not 'limit [courts] power.'" Musacchio, 136 S. Ct. at



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No. 74328-7-1/5

7162(quoting Messenger v. Anderson, 225 U.S. 436, 444, 32S. Ct. 739,56 L. Ed. 1152

(1912)).

        For the law-of-the-case doctrine to apply, "'the issue in question must have been

decided explicitly or by necessary implication in the previous disposition.'" Silva-

Pereira v. Lynch, 827 F.3d 1176, 1190 (9th Cir. 2016)(quoting United States v. Lummi

Nation, 763 F.3d 1180, 1185 (9th Cir. 2014)). Removal, modification, or relocation of

the encroaching dock canopy were not issues decided in Smith.3 Consequently, the

law-of-the-case doctrine does not apply.4

Equitable Factors

        The Petersons also contend the court erred by ordering them to remove, modify,

or relocate the encroaching canopy without considering equitable factors that must be

considered in an encroachment case. The Smiths do not respond to this argument.

        A trial court sitting in equity has "tremendous discretion to fashion a remedy 'to

do substantial justice to the parties and put an end to the litigation.'" Young v. Young,

164 Wn.2d 477, 488, 191 P.3d 1258(2008)(quoting Esmieu v. Hsieh, 92 Wn.2d 530,

535, 598 P.2d 1369 (1979)). The trial court's equity power "is inherently flexible and

fact-specific." Proctor v. Huntington, 169 Wn.2d 491, 503, 238 P.3d 1117(2010). We

review the trial court's exercise of its equitable authority for abuse of discretion.

Sorenson v. Pyeatt, 158 Wn.2d 523, 531, 146 P.3d 1172(2006); In re Proceedings of



        2 Alteration in original.
        3 In Smith, footnote 10 mentions but does not otherwise address the trial court conclusion that
"removal [of the canopy] would be wasteful and destructive." Smith, 2012 WL 432246, at *7 n.10.
        4 Because Smith affirmed the trial court's decision that "the Petersons did not establish a
prescriptive easement for use of the canopy," we also reject the Petersons' argument that the order
directing them to remove, modify, or relocate the canopy violated their easement rights. Smith, 2012 WL
432246, at *7 n.9.



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No. 74328-7-1/6

King County for the Foreclosure of Liens for Delinquent Real Prop. Taxes for the Years

1985 Through 1988, & Some Prior Years, 123 Wn.2d 197, 204, 867 P.2d 605(1994);

Recreational Equip., Inc. v. World Wrapps Nw., Inc., 165 Wn. App. 553, 559, 266 P.3d

924 (2011). "If the trial court's ruling is based on an erroneous view of the law or

involves application of an incorrect legal analysis, it necessarily abuses its discretion."

Dix v. IdT Grp., Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).

      "'Generally, courts will order an encroacher to remove encroaching structures

even though it is extraordinary relief.'" Coqdell v. 1999 O'Ravez Family, LLC, 153 Wn.

App. 384, 391, 220 P.3d 1259(2009)(quoting Proctor v. Huntington, 146 Wn. App. 836,

846, 192 P.3d 958 (2008)); Proctor v. Huntington, 169 Wn.2d 491, 504, 238 P.3d 1117

(2010); Arnold v. Melani, 75 Wn.2d 143, 152,449 P.2d 800 (1968). "However, an

exception exists 'where such an order would be oppressive.'" Coqdell, 153 Wn. App. at

391 (quoting Proctor, 146 Wn. App. at 847); Arnold, 75 Wn.2d at 152.

       In Arnold, the Washington Supreme Court held a court may refuse to enjoin an

encroachment under certain circumstances.

      [A] mandatory injunction can be withheld as oppressive when... it
      appears... that: (1)The encroacher did not simply take a calculated risk,
      act in bad faith, or negligently, willfully or indifferently locate the
      encroaching structure;(2)the damage to the landowner was slight and the
      benefit of removal equally small;(3) there was ample remaining room for a
      structure suitable for the area and no real limitation on the property's
      future use;(4) it is impractical to move the structure as built; and (5)there
      is an enormous disparity in resulting hardships.

Arnold, 75 Wn.2d at 152.

       The Supreme Court in Proctor states the "entire purpose of our pronouncement

in Arnold was to show that injunctions should not mechanically follow from any

encroachment." Proctor, 169 Wn.2d at 502. The Supreme Court held that when a court


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No. 74328-7-1/7

is asked to eject an encroacher, it must "reason through the Arnold elements as part of

its duty to achieve fairness between the parties." Proctor, 169 Wn.2d at 502-03.

        Here, contrary to the Supreme Court's direction in Proctor, the court

mechanically applied the Smiths' right to "the quiet enjoyment of their property" in

concluding the Petersons must remove, modify, or relocate the canopy. Because the

record shows the court did not consider the Arnold factors before ordering the

Petersons to remove, modify, or relocate the encroaching canopy, we reverse and

remand.5




WE CONCUR:




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        5 The Smiths request attorney fees under RAP 18.9(a). Because an appeal is not frivolous where
the appellant raises a debatable issue, we deny the request for attorney fees. Advocates for Responsible
Dev. v. W. Wash. Growth Mgmt. Hearings Bd., 170 Wn.2d 577, 580, 245 P.3d 764(2010).


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