                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            May 2, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 JAMES V. KAVE and HOLLY M. KAVE,                                    No. 48779-9-II
 individually and the marital community
 thereof,

                        Appellants,

        v.                                                   PART PUBLISHED OPINION

 MCINTOSH RIDGE PRIMARY ROAD
 ASSOCIATION, a Washington State
 Corporation,

                        Respondent.


       MAXA, A.C.J. – This case involves the claims of McIntosh Ridge Primary Road

Association (McIntosh) against James and Holly Kave for interfering with a trail easement and a

community recreation easement on the Kaves’ property that benefitted McIntosh. The Kaves

appeal certain summary judgment rulings, the entry of a judgment against them following a jury

trial, and the trial court’s award of treble damages and reasonable attorney fees against them.

       In the published portion of this opinion, we hold that the trial court erred in (1) quieting

title to an easement covering the trail’s existing location without regard to the easement’s legal

description; and (2) awarding McIntosh treble damages and attorney fees for interference with

the easements under RCW 4.24.630, which imposes liability when a person “goes onto the land

of another” and causes waste or damage, because the statute does not apply to the Kaves’ actions
No. 48779-9-II


taken on their own property. In the unpublished portion of the opinion we reject the Kaves’

remaining liability claims, but hold that McIntosh is not entitled to reasonable attorney fees

under the Easements, Covenants and Restrictions (EC&Rs) applicable to McIntosh Ridge

properties.

       Accordingly, we affirm in part, reverse in part, and remand for proceedings consistent

with this opinion.

                                              FACTS

       McIntosh Ridge is a community near Tenino that was created by the Weyerhaeuser Real

Estate Development Company. In 2000, Weyerhaeuser recorded EC&Rs that encumbered all

McIntosh Ridge properties. In 2004, the Kaves purchased two adjacent lots within the McIntosh

Ridge community – lots 12 and 18A. At the time of the Kaves’ purchase there were two

recorded easements that burdened their property for the benefit of McIntosh – a trail easement

and a community recreation easement.

Trail Easement

       In 2002, Weyerhaeuser filed an amendment to the EC&Rs that created the trail easement.

The amendment attached a document entitled “Legal Description.” Clerk’s Papers (CP) at 1782.

The document identified “[a] 10 foot wide easement . . . lying 5 feet on each side of the

centerline of the trail as built and located on the ground and generally described below,” and

provided a detailed legal description of the easement’s location. CP at 1782. The document then

stated that the easement was generally shown on an attached area map, which depicted the

easement’s location on lots 12 and 18A. The area map referred to the easement as a “50’ wide




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No. 48779-9-II


trail easement,” and stated that the purpose of the drawing was “to show the general location of

the easement as a schematic representation.” CP at 1783.

       A trail already was in place on lots 12 and 18A when the Kaves purchased those lots in

2004. But a 2012 survey commissioned by McIntosh showed that the existing location of a

portion of the trail on the Kaves’ property did not conform to its legal description.

Community Recreation Easement

       The community recreation easement was a circular easement with a 100 foot radius. The

circle included a triangular area of land sitting between three roads. Most of the community

recreation easement burdened the Kaves’ lot 12.

       Weyerhaeuser had placed numerous amenities in and around the community recreation

easement before the Kaves purchased lot 12. These amenities included a picnic shelter, log

benches, hitching posts, picnic tables, a log perimeter, a fire pit, a shed, and a flag pole.

       McIntosh alleged that before September 2010, the Kaves demolished the log benches and

log perimeter, removed picnic tables, knocked over the hitching posts, and damaged the picnic

shelter. In October 2010, McIntosh had the community recreation easement surveyed. The

survey showed that the picnic shelter was partially outside of the easement and on the Kaves’

property. Shortly after the survey was completed, the Kaves removed the picnic shelter. And

McIntosh alleged that the Kaves knocked over the flag pole and destroyed the fire pit, which

were entirely within the community recreation easement.

Kaves’ Lawsuit Against McIntosh

       In 2012, McIntosh performed some work on the triangular piece of land within the

community recreation easement – pulling up tree stumps, clearing vegetation, grading and



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No. 48779-9-II


installing a ditch and culvert. The Kaves believed that there were wetlands in that area. An

environmental consultant’s report concluded that the recreational easement contained a wetland

area and that McIntosh’s activities had impermissibly disturbed this wetland.

       In August 2013, the Kaves filed suit against McIntosh, alleging that McIntosh’s activities

had harmed wetlands within the easement and had violated federal and state statutes and various

EC&R provisions. The Kaves sought an injunction requiring McIntosh to restore the wetland

and also requested damages for timber trespass under RCW 64.12.030 and waste under RCW

4.24.630. The trial court dismissed all of the Kaves’ claims before trial.

McIntosh’s Counterclaims Against the Kaves

       In response to the Kaves’ complaint, McIntosh in September 2013 asserted several

counterclaims. McIntosh sought an order quieting title to an implied easement over the Kaves’

property for the areas McIntosh had used and improved outside of the express easements. In

addition, McIntosh sought relief under RCW 4.24.630 for alleged waste and damage to the trail

and community recreation easements. McIntosh also asserted causes of action for conversion,

breach of the EC&Rs, nuisance, and unjust enrichment.

       McIntosh moved for summary judgment to quiet title to the trail easement. The trial

court granted the motion and stated that McIntosh “may use the trail in its current location and

should take steps to document the current location of the trail to the extent the trail has shifted

from its original and/or the legally described path.” CP at 1916.

       The Kaves filed a motion for reconsideration of the trial court’s quiet title ruling. They

supported their motion with the 2012 survey map showing that a portion of the trail easement on

their property did not conform to its legal description. And in response, McIntosh submitted



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No. 48779-9-II


portions of a deposition indicating that the trail may have shifted over the years. The trial court

denied the Kaves’ motion for reconsideration.

       The Kaves also moved for summary judgment seeking dismissal of McIntosh’s

counterclaims, including the RCW 4.24.630 claim. But the Kaves did not argue that RCW

4.24.630 was inapplicable to them because their alleged interference with the easements occurred

only on their own property. The trial court denied the Kaves’ motion, stating that there were

material issues of fact on the counterclaims.

Verdict and Post-Judgment Awards

       The case proceeded to trial and the jury rendered a verdict through a special verdict form.

On McIntosh’s RCW 4.24.630 claim, the jury found that the Kaves (1) had wrongfully injured

personal property or improvements to land where McIntosh had an easement and caused

damages of $12,500, and (2) had caused waste or injury to land where McIntosh had an easement

and caused damages of $1,000.

       McIntosh filed a motion to treble these damages and for an award of reasonable attorney

fees, both under RCW 4.24.630. The Kaves opposed the motion, arguing for the first time that

RCW 4.24.630 was inapplicable because they did not go onto the land of another when

interfering with the easements.

       Based on RCW 4.24.630, the trial court trebled the $13,500 in damages related to damage

to personal property in the easements and injury and waste to the easements. Regarding attorney

fees, the court ruled that McIntosh was entitled to attorney fees under RCW 4.24.630 and made

an express factual finding that McIntosh’s multiple claims were largely intertwined. Therefore,




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No. 48779-9-II


the court awarded McIntosh its attorney fees incurred in pursuing all its counterclaims, totaling

$237,134.45.

         The Kaves appeal the trial court’s judgment.

                                             ANALYSIS

A.       QUIETING TITLE TO THE TRAIL EASEMENT

         The Kaves argue that the trial court did not have authority to quiet title to an easement at

the trail’s existing location. McIntosh argues that the trial court did not relocate the easement,

but simply confirmed that the trail could be left in its existing location. We agree with the

Kaves.

         1.   Standard of Review

         We review a trial court’s order granting or denying summary judgment de novo. Lyons v.

U.S. Bank Nat’l Ass’n, 181 Wn.2d 775, 783, 336 P.3d 1142 (2014). We view the evidence in the

light most favorable to the nonmoving party and draw all reasonable inferences in that party’s

favor. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013). Summary

judgment is appropriate where there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c).

         McIntosh argues that we should review equitable decisions made in the context of

summary judgment for abuse of discretion. The general standard of review for a trial court’s

exercise of equitable authority is abuse of discretion. Emerick v. Cardiac Study Ctr., Inc., 189

Wn. App. 711, 730, 357 P.3d 696 (2015), review denied, 185 Wn.2d 1004 (2016). But the issue

here is whether the trial court had authority to exercise its equitable powers to quiet title to the

trail in its current location, not whether it properly exercised any authority it had. Whether a trial



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No. 48779-9-II


court has the authority to order equitable relief is a question of law that we review de novo.

Niemann v. Vaughn Cmty. Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005).

        2.     Analysis

        A trial court has authority to quiet title in the dominant owner to an easement based on

the instrument creating the easement. See Kirk v. Tomulty, 66 Wn. App. 231, 240-41, 831 P.2d

792 (1992) (affirming the trial court’s decree quieting title to an easement based on a metes and

bounds description). Therefore, the trial court had authority here to quiet title in McIntosh to the

easement described in the legal description attached to the second amendment to the EC&Rs.

        But McIntosh did not request that the trial court quiet title to the legally described

easement. During oral argument on McIntosh’s summary judgment motion, the trial court asked

McIntosh’s counsel, “What exactly are you asking for with respect to the trail easements?” CP

at 2108. Counsel replied:

        That wherever the trails are right now, if that’s not where the legal easements are,
        that we do some sort of adjustment to say those are the trails, and we’ll do a
        boundary line adjustment.

CP at 2108 (emphasis added). Counsel then confirmed that McIntosh was requesting to quiet

title to the existing location. In its summary judgment order, the court granted what McIntosh

requested: quiet title to the existing location of the trail, regardless of the easement’s legal

description.

        In MacMeekin v. Low Income Housing Institute, Inc., Division One of this court adhered

to the traditional rule at common law that a trial court has no equitable authority to order

relocation of an easement without the express consent of the owners of both the dominant and

servient estates. 111 Wn. App. 188, 207, 45 P.3d 570 (2002). In Crisp v. VanLaeken, this court



                                                   7
No. 48779-9-II


agreed with MacMeekin and held that the owner of the servient estate could not relocate an

easement without consent of the dominant estate owner. 130 Wn. App. 320, 324-26, 122 P.3d

926 (2005). Both cases rejected the minority rule adopted by the Restatement (Third) of

Property: Servitudes § 4.8(3) (2000) that would allow a servient estate owner to relocate an

easement without the dominant estate owner’s consent. MacMeekin, 111 Wn. App. at 207;

Crisp, 130 Wn. App. at 321.

       Here, the trial court quieted title to the trail easement based on its existing location rather

than based on the trail’s legal description. To the extent that the trail’s existing location was

different than the legal description, this ruling constituted a relocation of the trail easement

without the Kaves’ consent. Under MacMeekin and Crisp, the trial court had no authority to

order such a relocation.1

       McIntosh argues that MacMeekin and Crisp are inapplicable because it did not request a

relocation of the trail easement, only a confirmation that the easement was valid in its existing

location. McIntosh focuses on the area map attached to the easement’s location, which

referenced a 50-foot-wide trail easement. McIntosh claims that the easement’s legal description

should be interpreted as requiring only that the easement be within this 50-foot corridor, not as

limiting the easement to a specific 10-foot-wide path. According to McIntosh, the trial court did

not relocate the easement, but just confirmed that it did not have to be moved.



1
  Both MacMeekin and Crisp involved the servient estate owner’s attempt to relocate an
easement. Here, McIntosh as the dominant estate owner was requesting relocation. But this
distinction is immaterial. There is no indication in either case that the dominant estate owner has
the right to relocate an easement without the servient estate owner’s consent. Even the
Restatement relocation rule applies only to the servient estate owner. Restatement (Third) of
Property: Servitudes § 4.8(3).


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No. 48779-9-II


       McIntosh’s argument might have merit if the area map provided the only description of

the trail easement. However, the document entitled “Legal Description” unambiguously stated

that the easement was 10 feet wide and then described in specific detail the exact location of the

easement’s centerline. The area map simply showed the “general location of the easement as a

schematic representation.” CP at 1783. The legal description’s plain language is inconsistent

with the argument that the easement could be located anywhere within a 50-foot corridor.

       McIntosh also argues that a trial court has broad equitable authority to determine the

location of an easement, citing Piotrowski v. Parks, 39 Wn. App. 37, 691 P.2d 591 (1984) and

Wilhelm v. Beyersdorf, 100 Wn. App. 836, 999 P.2d 54 (2000). Neither case applies here.

       In Piotrowski, the owners of adjoining properties orally agreed to establish a boundary

line between the properties and erected a fence along that line. 39 Wn. App. at 38-39. The fence

line tuned out to be 13 feet east of the actual boundary line, and a subsequent owner sought to

quiet title to the 13 feet between the fence and the actual boundary. Id. The court held that the

oral agreement satisfied the criteria required to fix the common boundary and that the fence put

the subsequent owner on notice of the agreed new boundary. Id. at 46. McIntosh claims that

Piotrowski applies by analogy because as with the property owners in that case, the Kaves were

on notice that a trail existed on their property in the existing location. But unlike in Piotrowski,

the Kaves never entered into an agreement fixing the location of the trail that differed from the

legal description.

       In Wilhelm, the owner of landlocked property obtained an easement across adjoining

property for access, but the easement as drafted did not adequately fix its location. 100 Wn.

App. at 839. The appellate court held that the trial court had equitable authority to reform the



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No. 48779-9-II


easement instrument to reflect its actual use based on mutual mistake and a scrivener’s error

because the easement description failed to express the parties’ clear intent. Id. at 843-45.

McIntosh claims that Wilhelm establishes that if the existing location of the trail was inconsistent

with the legal description, the trial court had equitable authority to fashion a remedy. But unlike

in Wilhelm, the legal description here clearly and unambiguously described the location of the

trail, and there was no mutual mistake or scrivener’s error.

       We hold that the trial court did not have authority to quiet title in McIntosh to an

easement based on the existing location of the trail to the extent that the existing location differed

from the easement’s legal description. The record is unclear how the trail’s existing location

compared with the easement’s legal description. Therefore, we remand this claim for further

proceedings consistent with this opinion.

B.     APPLICABILITY OF RCW 4.24.630 TO EASEMENTS ON THE KAVES’ PROPERTY

       The Kaves argue that the trial court erred in denying their motion for summary judgment

on McIntosh’s counterclaim for RCW 4.24.630 liability and in awarding treble damages and

reasonable attorney fees to McIntosh under RCW 4.24.630. They claim that RCW 4.24.630

cannot apply to actions that occurred on their own property. We decline to address this

argument with regard to the trial court’s summary judgment order and the jury’s subsequent

verdict because the Kaves did not raise this argument on summary judgment or at trial.

       But the Kaves did assert this argument in opposition to posttrial motions on treble

damages and attorney fees, and therefore we consider the argument in that context. We hold that

RCW 4.24.630 does not apply to the Kaves’ interference with easements on their own property,




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No. 48779-9-II


and therefore that the trial court erred in awarding treble damages and reasonable attorney fees to

McIntosh under RCW 4.24.630.

       1.    Judgment for Damages

       We generally do not consider arguments raised for the first time on appeal. See RAP

2.5(a); Karlberg v. Otten, 167 Wn. App. 522, 531, 280 P.3d 1123 (2012). Specific to summary

judgment, RAP 9.12 provides that the “appellate court will consider only evidence and issues

called to the attention of the trial court.” See, e.g., Vernon v. Aacres Allvest, LLC, 183 Wn. App.

422, 436, 333 P.3d 534 (2014), review denied, 182 Wn.2d 1006 (2015) (declining to consider

argument on appeal that was not made during summary judgment proceedings below). The

purpose of this rule is to ensure that we engage in the same inquiry as the trial court. Id.

       Here, the Kaves did not raise the argument that RCW 4.24.630 was inapplicable because

their alleged activities occurred only on their property when arguing their summary judgment

motion to dismiss McIntosh’s RCW 4.24.630 claim. And they did not object on this basis when

the trial court submitted the RCW 4.24.630 claim to the jury. The first time the Kaves raised this

argument in their pleadings was in posttrial motions – opposing treble damages and attorney fees

and moving for a new trial. Therefore, we decline to consider this argument with regard to the

trial court’s denial of the Kaves’ summary judgment motion and the jury’s verdict. We affirm

the portion of the judgment relating to McIntosh’s RCW 4.24.630 claims in the amount of

$13,500.

       2.    Treble Damages and Attorney Fees

       When opposing McIntosh’s motion for treble damages and reasonable attorney fees, the

Kaves did assert the argument that RCW 4.24.630 was inapplicable because their alleged



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No. 48779-9-II


activities occurred only on their property. Therefore, we will consider the argument in that

context.

       RCW 4.24.630(1), referred to as the waste statute, provides:

       Every person who goes onto the land of another and who removes timber, crops,
       minerals, or other similar valuable property from the land, or wrongfully causes
       waste or injury to the land, or wrongfully injures personal property or
       improvements to real estate on the land, is liable to the injured party for treble the
       amount of the damages caused by the removal, waste, or injury. . . . In addition, the
       person is liable for reimbursing the injured party for the party’s reasonable costs,
       including but not limited to investigative costs and reasonable attorneys’ fees and
       other litigation-related costs.

(Emphasis added.) This plain language imposes liability only on a person who “goes onto the

land of another.” RCW 4.24.630(1).

       The issue here is the meaning of “land of another.” The Kaves argue that RCW 4.24.630

does not apply to servient estate owners’ interference with an easement located on their own

property. McIntosh argues that because a dominant estate owner has a property interest in the

easement, a servient estate owner like the Kaves can trespass on that easement and incur liability

under RCW 4.24.630. We agree with the Kaves.

       “An easement “is a nonpossessory right to use another’s land in some way without

compensation.” Maier v. Giske, 154 Wn. App. 6, 15, 223 P.3d 1265 (2010) (emphasis added).

Although the dominant estate has a right to use the servient estate, the land remains the property

of the servient estate. See Crisp, 130 Wn. App. at 323 (defining an easement as “a right, distinct

from ownership, to use in some way the land of another, without compensation”) (internal

quotation marks omitted). Therefore, an easement cannot be considered the “land” of the

dominant estate owner.




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No. 48779-9-II


       Here, McIntosh’s counterclaim against the Kaves under RCW 4.24.630 was premised

only on the Kaves’ alleged interference with the trail easement and the community recreation

easement. Both easements are on the Kaves’ property, and there was no allegation that any of

the Kaves’ actions giving rise to their liability took place outside their property. Based on the

plain language of RCW 4.24.630, the Kaves did not enter into the “land of another” even if they

did interfere with the easements.

       Colwell v. Etzell, 119 Wn. App. 432, 439, 81 P.3d 895 (2003), supports the finding that

RCW 4.24.630 does not apply when a servient estate owner interferes with an easement on his or

her property. In that case, the Colwells were the beneficiaries of a road easement on Etzell’s

property. Id. at 435. The Colwells filed suit against Etzell under RCW 4.24.630 after he

performed construction work on the road that allegedly interfered with the Colwells’ use of the

road. Id. at 435-36. The trial court found that Etzell violated RCW 4.24.630 by intentionally

interfering with the Colwells’ easement. Id. at 435, 437.

       The appellate court reversed, holding that Etzell did not violate RCW 4.24.630. Id. at

435, 441-42. In quoting RCW 4.24.630, the court highlighted the phrase “who goes onto the

land of another.” Id. at 437. The court then expressly rejected the trial court’s determination that

RCW 4.24.630 liability turned not on entry upon the land of another, but on the invasion of a

right in land. Id. at 438-39. Instead, the court stated, “The statute’s premise is that the defendant

physically trespasses on the plaintiff’s land. There was no physical trespass in the present case.”

Id. at 439. The court concluded that “RCW 4.24.630 is premised upon a wrongful invasion or

physical trespass upon another’s property, a commission of intentional and unreasonable acts




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No. 48779-9-II


upon another’s property, and subsequent destruction of physical or personal property by the

invader to another’s property.” Id. at 441 (emphasis added).

       The court in Colwell addressed and distinguished Standing Rock Homeowners Ass’n v.

Misich, 106 Wn. App. 231, 23 P.3d 520 (2001). In Standing Rock, the defendant – a dominant

estate owner of a road easement – destroyed gates that had been placed on someone else’s

property that interfered with use of the easement. Id. at 235-37. The court affirmed liability

under RCW 4.24.630. Id. at 246-247. As the court in Colwell noted, in Standing Rock the

defendant wrongfully invaded and trespassed on another’s property to destroy the gates.

Colwell, 119 Wn. App. at 438-39.2

       We hold that RCW 4.24.630 does not apply to a servient estate owner’s interference with

an easement on his or her own property. Therefore, we reverse the trial court’s award of treble

damages and reasonable attorney fees to McIntosh under RCW 4.24.630.

                                          CONCLUSION

       We reverse the trial court’s grant of summary judgment to McIntosh quieting title to the

trail easement to the extent that the actual trail does not conform to its legal description. We

affirm the jury’s damages verdict on McIntosh’s RCW 4.24.630 claims, but reverse the trial

court’s award of treble damages and reasonable attorney fees under RCW 4.24.630. We address

the remaining issues in the unpublished part of this opinion. Accordingly, we affirm in part,

reverse in part, and remand for proceedings consistent with this opinion.


2
  McIntosh argues that because Standing Rock held that a dominant estate owner can be liable
under RCW 4.24.630 for damaging property within an easement, it “logically follows” that a
servient estate owner also can be liable under RCW 4.24.630 for damaging an easement. But
this argument ignores that a dominant estate owner necessarily must go onto the land of another
to damage an easement, while a servient estate owner need not.


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No. 48779-9-II


       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.

                                      ADDITIONAL FACTS

Motion in Limine

       The Kaves filed suit against McIntosh, alleging that McIntosh’s modifications within the

community recreation easement harmed wetlands within the easement and violated federal and

state statutes and various EC&R provisions. The trial court dismissed most of the Kaves’ claims

against McIntosh on summary judgment. The only issue that survived summary judgment was a

portion of the Kaves’ waste claim under RCW 4.24.630, limited to $522 of alleged timber

removed from the wetland portion of the community recreation easement. The trial court also

stated that potential liability for consulting and attorney fees remained.

       Before trial, McIntosh filed a motion in limine seeking to prevent the Kaves from

submitting evidence of waste and damages related to the Kaves’ wetlands-related claims that had

been dismissed on summary judgment. In the context of this motion, the trial court ruled that the

Kaves could not seek any attorney fees, expert fees, costs or other related expenses that they

incurred in pursuing their own claims. The trial court also granted the motion in limine.

Jury Instructions

       The trial court’s jury instructions included instructions on liability for nuisance and under

RCW 4.24.630. The Kaves did not object to these instructions. The Kaves also did not propose

jury instructions stating the presumption that proper forestry practices are not a nuisance or

stating that RCW 4.24.630 was inapplicable to activity taking place on the defendant’s own land.



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       The Kaves did not propose a statute of limitations instruction. However, the Kaves

requested that the instruction describing McIntosh’s counterclaims against the Kaves for

damaging and removing improvements to the community recreation easement and causing waste

and injury to the trail easement be modified to state that McIntosh had to prove that the alleged

acts occurred after September 2010, three years before McIntosh filed its counterclaims. The

Kaves apparently believed that the statute of limitations precluded recovery for any activities

before that date. The trial court declined to include a date in the instruction. However, the court

stated that it intended to include a general instruction on statute of limitations that had been

proposed by McIntosh.

       But McIntosh later asked that the general statute of limitations instruction be removed.

McIntosh was concerned that the three year reference would cause confusion in relation to

claims under the EC&Rs, which were subject to a six year statute of limitations. After noting

that the Kaves never proposed an instruction on the subject, the court removed the statute of

limitations instruction.

Jury Verdict and Post-Judgment Motions

       The jury rendered a verdict on McIntosh’s other claims in addition to the RCW 4.24.630

claim. The jury found that the Kaves (1) committed conversion and caused damages of $1,000,

(2) committed nuisance and caused damages of $9,500. The jury also found that the Kaves

breached the EC&Rs, but was not asked to find damages on that claim. The jury did not find in

favor of McIntosh on its unjust enrichment and implied easement claims.

       In addition to requesting an award of reasonable attorney fees under RCW 4.24.630,

McIntosh also requested attorney fees under section 8.10 of the EC&Rs. The Kaves did not



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No. 48779-9-II


expressly argue that McIntosh was not entitled to recover attorney fees under section 8.10.3 The

trial court ruled that the jury’s finding that the Kaves breached the EC&Rs also gave rise to an

award of attorney fees under the EC&Rs, although it noted that an award on that basis would be

superfluous in light of the award of attorney fees under RCW 4.24.630. The court stated that its

attorney fees analysis applied equally to the EC&Rs.4

       The Kaves filed a motion for a new trial on various grounds. The Kaves argued that

RCW 4.24.630 was inapplicable to interference with an easement that was on their land. Also

for the first time, the Kaves argued that the verdict on nuisance was contrary to law because

properly conducted forest practices are presumed to not be a nuisance under RCW 7.48.305. The

trial court denied the Kaves’ motion for a new trial.

                                   ADDITIONAL ANALYSIS

A.     EXCLUSION OF THE KAVES’ DAMAGES EVIDENCE

       The Kaves argue that the trial court erred in granting McIntosh’s motion in limine

preventing the Kaves from presenting evidence regarding wetland consultant fees they incurred.

We disagree.

       We review a trial court’s decision to grant a motion in limine for an abuse of discretion.

Gunn v. Riely, 185 Wn. App. 517, 531, 344 P.3d 1225, review denied, 183 Wn.2d 1004 (2015).



3
 The Kaves did argue that McIntosh was not entitled to attorney fees on its nuisance claim under
section 6.7 of the EC&Rs, which addresses the abatement of nuisances.
4
 McIntosh also requested reasonable attorney fees incurred in defending against the Kaves’
unsuccessful claims under the EC&Rs, RCW 4.24.630, and other grounds. The trial court
granted McIntosh’s motion and awarded attorney fees incurred in defending against the Kaves’
unsuccessful claims. The Kaves do not appeal the award of attorney fees to McIntosh in
defending against the Kaves’ claims.


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No. 48779-9-II


A trial court abuses its discretion when its decision is manifestly unreasonable or based on

untenable grounds. Terrell v. Hamilton, 190 Wn. App. 489, 499, 358 P.3d 453 (2015).

       The Kaves argue that the trial court erred in excluding evidence regarding their wetland

consultant fees because they could recover those fees under RCW 4.24.630. But the trial court

initially dismissed on summary judgment their RCW 4.24.630 claims except for $522 for

removed timber. And in the context of the motion in limine, the court then dismissed that claim

as well. The Kaves did not appeal these dismissals. Therefore, any evidence regarding their

consultant fees was irrelevant to the remaining issues at trial and was properly excluded.

       We hold that the trial court did not abuse its discretion in excluding evidence of the

Kaves’ costs related to their own RCW 4.24.630 claims, which had been dismissed.

B.     STATUTE OF LIMITATIONS INSTRUCTION

       The Kaves argue that the trial court erred by not giving an instruction about the statute of

limitations for McIntosh’s counterclaims.5 We disagree.

       We review the trial court’s decision whether to give a particular jury instruction for an

abuse of discretion. Terrell, 190 Wn. App. at 498. A trial court abuses its discretion when its

decision is manifestly unreasonable or based on untenable grounds. Id. at 499. A jury

instruction is sufficient if it properly informs the jury of the applicable law, allows each party to

argue their theory of the case, and is supported by substantial evidence. Fergen v. Sestero, 182

Wn.2d 794, 803, 346 P.3d 708 (2015).


5
  The Kaves also suggest that the trial court erred in denying its motion filed at the close of
McIntosh’s evidence under CR 41(c) and CR 50 to dismiss McIntosh’s claims that were outside
the statute of limitations. However, the Kaves do not make any argument in support of this
suggestion. Therefore, we do not consider the issue. See RAP 10.3(a)(6); e.g. Joy v. Dep’t of
Labor & Indus., 170 Wn. App. 614, 629, 285 P.3d 187 (2012).


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No. 48779-9-II


        Here, the trial court declined to include the statute of limitations instruction because it

could cause prejudice to McIntosh by implying that their claims under the EC&Rs for the Kaves’

wrongful conduct were also subject to a three year statute of limitations. As a result, the

instruction potentially would be confusing to the jury. The trial court also noted that the Kaves

had failed to propose a better instruction despite being instructed by the trial court to do so.

        The trial court expressed clear reasons for declining to give the statute of limitations

instruction. And the Kaves fail to cite any authority indicating that the trial court was required to

give such an instruction. Accordingly, we hold that the trial court did not abuse its discretion in

declining to give a statute of limitations instruction.

C.      NUISANCE AND RCW 4.24.630 INSTRUCTIONS

        The Kaves argue that the trial court erred by failing to instruct the jury that properly

conducted forest practices are presumed to not be a nuisance and that RCW 4.24.630 is

inapplicable to actions taken by a person on his or her own land. We hold that the Kaves failed

to preserve these arguments because they did not request those instructions at trial or object to

the trial court’s instructions.

        A party has a duty to propose an appropriate instruction, and if the trial court fails to give

the proposed instruction the party must take exception to that failure. Goehle v. Fred Hutchinson

Cancer Research Ctr., 100 Wn. App. 609, 614, 1 P.3d 579 (2000). “If a party does not propose

an appropriate instruction, it cannot complain about the court’s failure to give it.” Goodman v.

Boeing Co., 75 Wn. App. 60, 75, 877 P.2d 703 (1994), aff’d, 127 Wn.2d 401, 899 P.2d 1265

(1995). And a party that fails to object to a jury instruction waives the ability to challenge that




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No. 48779-9-II


instruction on appeal. RAP 2.5(a); Hudson v. United Parcel Serv., Inc., 163 Wn. App. 254, 269,

258 P.3d 87 (2011).

       Here, the Kaves did not propose an instruction about forest practices as a defense to

nuisance liability or RCW 4.24.630’s inapplicability to easements on their property. In addition,

they did not object to the nuisance instructions or the RCW 4.24.630 instruction on those

grounds. Accordingly, we hold that the Kaves failed to preserve their ability to challenge the

jury instructions on nuisance and RCW 4.24.630 on appeal.

D.     CUMULATIVE ERROR

       The Kaves argue that a new trial is warranted because cumulative error denied them a fair

trial. We disagree.

       The Kaves do not provide any authority that a cumulative error doctrine applies in a civil

case. They cite Storey v. Storey, 21 Wn. App. 370, 374, 585 P.2d 183 (1978), for the proposition

that cumulative error can justify a remand for a new trial. However, the court in Storey reviewed

the trial court’s specific decision to grant a CR 59 motion for a new trial. 21 Wn. App. at 373-

74. Therefore, Storey does not stand for the proposition that we can remand for a new trial on

the basis of cumulative error.

       Even if the cumulative error doctrine applies in civil cases, the Kaves fail to show that

they were denied a fair trial. They argue that errors allowed for a “snowball misapplication of

RCW 4.24.630.” Br. of Appellant at 46-47. But as discussed above, they failed to challenge the

application of RCW 4.24.630 before trial or at trial. We hold that there was no cumulative error

requiring a new trial.




                                                20
No. 48779-9-II


E.     RECOVERY OF ATTORNEY FEES UNDER THE EC&RS

       The Kaves argue that McIntosh is not entitled to recover reasonable attorney fees under

the EC&Rs for prosecuting its counterclaims because section 8.10 of the EC&Rs allows fees

only when lot owners, not McIntosh, file suit.6 We agree.

       1.   Failure to Raise Issue in Trial Court

       McIntosh’s only argument is that the Kaves did not argue in the trial court that McIntosh

could not recover reasonable attorney fees under the language of the EC&Rs.7 As noted above,

we generally do not consider arguments raised for the first time on appeal. See RAP 2.5(a);

Karlberg, 167 Wn. App. at 531.

       However, the Kaves did oppose McIntosh’s motion for an award of attorney fees. And

although the Kaves did not rely on section 8.10 of the EC&Rs, they did refer to section 6.7.

Finally, the trial court did not actually award attorney fees under the EC&Rs because it already

had awarded attorney fees under RCW 4.24.630. Under these circumstances, we exercise our

discretion to consider the Kaves’ argument on appeal.




6
  The Kaves also challenge the amount of attorney fees the trial court awarded. Because we hold
that McIntosh is not entitled to attorney fees under either RCW 4.24.630 or the EC&Rs, we do
not address this argument.
7
  McIntosh also argues that the Kaves actively represented to the trial court that McIntosh could
recover attorney fees under the EC&Rs, and judicial estoppel prevents the Kaves from taking the
opposite position in this appeal. However, the record shows only that the Kaves indicated they
would seek attorney fees if they prevailed on McIntosh’s EC&R claims, not that McIntosh would
be entitled to attorney fees if it prevailed on its EC&R claims.


                                                21
No. 48779-9-II


       2.   Analysis

       A court may award reasonable attorney fees only when such an award is authorized by

contract, statute, or recognized ground of equity. Union Bank, NA v. Blanchard, 194 Wn. App.

340, 364, 378 P.3d 191 (2016). Section 8.10 of the EC&Rs states:

       If the Board of Directors of the Association, or their successors or assigns shall
       violate or attempt to violate any of the easements, covenants or restrictions herein,
       it shall be lawful for any other person or persons owning a Lot to prosecute any
       proceedings at law or in equity against the Association to prevent it from so doing
       or to recover damages and costs for such violation, including, without limitation,
       reasonable attorneys’ fees.

CP at 761 (emphasis added).

       The plain language of section 8.10 only allows an award of attorney fees to a lot owner

who successfully sues McIntosh. That section clearly does not allow McIntosh to recover

attorney fees for prosecuting proceedings against a lot owner.

       McIntosh suggests that it is entitled to reciprocal attorney fees under RCW 4.84.330.

That statute requires that any contracts containing unilateral attorney fee provisions must be

applied bilaterally. See Kaintz v. PLG, Inc., 147 Wn. App. 782, 786-87, 197 P.3d 710 (2008).

The EC&Rs between McIntosh and lot owners was a contract. See Wilkinson v. Chiwawa

Cmtys. Ass’n, 180 Wn.2d 241, 249-50, 327 P.3d 614 (2014) (treating covenants as a contract).

But RCW 4.84.330 would only authorize McIntosh to recover attorney fees for defending

against the Kaves’ claims for violation of the EC&Rs, not to prosecute its own claims.

       We hold that the trial court erred in ruling that McIntosh was entitled to recover attorney

fees under the EC&Rs.




                                                22
No. 48779-9-II


F.     ATTORNEY FEES ON APPEAL

       The Kaves request that we award them their reasonable attorney fees on appeal under

RCW 4.24.630. RCW 4.24.630 provides that a person liable under the statute must pay attorney

fees to the injured person. But RCW 4.24.630 does not allow a person who successfully defends

a claim under the statute to recover attorney fees. Accordingly, we do not award attorney fees to

the Kaves on appeal.

       McIntosh requests attorney fees on appeal under RCW 4.24.630 and the EC&Rs.

However, we hold above that McIntosh is not entitled to recover attorney fees under either RCW

4.24.630 or the EC&Rs. Accordingly, we do not award McIntosh attorney fees on appeal.

                                        CONCLUSION

       We affirm in part, reverse in part, and remand for proceedings consistent with this

opinion.



                                                    MAXA, A.C.J.



 We concur:




WORSWICK, J.




SUTTON, J.




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