                                                                                                       FILED
                                                                                                          F _.
                                                                                                      IVO ..      BLS



                                                                                             Mil AP, I5

                                                                                              5-J




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

PHILIP BRENT PLATTNER,                 as   Trustee                           No. 43938 -7 -II
of the PHILIP BRENT PLATTNER TRUST,

                                      Appellant,


          v.



ROBERT K. BONNETT and JANET A.                                         UNPUBLISHED OPINION
BONNETT, husband and wife,


                                      Respondents.


          WORSWICK, C. J. —         Philip Plattner appeals from the judgment entered in a property

dispute   with   his   neighbors,   Robert   and   Janet Bonnett ( collectively, Bonnett). Plattner argues that


the trial court erred by ( 1) ruling that a recorded agreement completely modified the dimensions

of an express easement, (      2) failing to find that Bonnett created a nuisance in fact, (3) failing to

award Plattner treble damages and attorney fees under RCW 4.24. 630, and (4) violating his right

to due process by enjoining him to remove a gate and its posts. We disagree, deny Plattner' s
request   for attorney fees    on appeal, and affirm.
No. 43938 -7 -II




                                                              FACTS


       John McCrory owned a piece of land adjacent to South Island Drive on Harstine Island.

In 1993, he divided it into two properties: the Plattner Property and the Bonnett Property.

McCrory also recorded a short plat showing the creation of a 30- foot - ide access, drainage, and
                                                                      w

utility easement benefitting the Plattner Property and burdening the Bonnett Property. An
unpaved, 8- foot -
                 wide road sat within the easement.


        In 2004, McCrory sold the Bonnett Property to Bonnett. A Road Relocation Agreement

was attached to the recorded statutory warranty deed. The Road Relocation Agreement

contemplated the construction, by June 15, 2004, of a new road, part of which would be located

outside of   the   original easement.        The Road Relocation Agreement further               stated   that "[   t]he


relocated easement shall equal the ` as built' dimensions and location of the road to be

constructed."      Clerk'   s   Papers ( CP)     at   381.   The new road was in fact built by June 15, 2004.

Unlike the unpaved road, the new, paved road was 10 to 12 feet wide, and it partially sat on the

Plattner Property.

        In 2006,     McCrory        sold   the Plattner      Property   to Plattner.   1 The statutory warranty deed

contained nearly identical language about the relocated easement.

        Plattner    and   Bonnett had        a   long   series of   disputes.   After Plattner objected to Bonnett' s


installation of metal fence posts along both sides of the paved road, Bonnett removed the posts




 1 Plattner purchased the property as trustee for the Philip Brent Plattner Trust. We refer to the
trust and the individual collectively as Plattner.



                                                                    2
No. 43938 -7 -II




along one side. In addition, Plattner repeatedly complained to Bonnett about the parking of a

trailer that encroached onto his easement.


         Plattner installed a farm gate across the road near its entrance onto South Island Drive.


Bonnett complained that the need to open and close the gate made it difficult to access his house.

         Plattner also installed a motion -
                                          activated video camera that captured images of the road


and the Bonnett Property. Based on video footage, Plattner accused Bonnett of intentionally

damaging the camera.

         Plattner commenced this case, seeking money damages, injunctive relief, and declaratory

relief. Plattner' s second amended complaint sought to quiet title to a 30- foot -
                                                                                 wide easement and

additionally asserted claims including interference with his right of easement, trespass, and

nuisance.




         Bonnett counterclaimed, seeking injunctive and declaratory relief. Among other things,

Bonnett claimed that Plattner' s farm gate blocked the road and he requested its removal.

         After a bench trial, the trial court determined that the Road Relocation Agreement

modified the entire express easement, so that the easement' s dimensions were coextensive with


those of the paved road. The trial court further determined that each party had interfered with the

other' s right of easement. Accordingly, the trial court ordered Bonnett to remove the split -
                                                                                             rail

fence and the remaining metal fence posts, and it ordered Plattner to remove his farm gate and its

posts.
No. 43938- 7- 11




          In addition, the trial court determined that Robert Bonnett " inadvertently damaged"

Plattner'   s video camera and awarded $ 309            in damages. CP       at   73. But the trial court denied


Plattner' s   claim    for treble damages      and   attorney fees   under   RCW 4. 24. 630( 1),     as well as



Plattner' s nuisance in fact claim.

          Plattner appeals.


                                                       ANALYSIS


          When reviewing a trial court' s decision following a bench trial, we determine whether

substantial evidence supports the challenged findings of fact and, if so, whether the findings of

fact   support   the               of
                       conclusions .    law.    Willener v. Sweeting, 107 Wn.2d 388, 393, 730 P. 2d 45

 1986).     Substantial evidence is a sufficient quantity of evidence to persuade a fair -
                                                                                         minded,

rational person that the finding is true. Bering v. Share, 106 Wn.2d 212, 220, 721 P. 2d 918

 1986).     Unchallenged findings of fact are verities on appeal. In re Estate ofJones, 152 Wn.2d

1, 8, 93 P. 3d 147 ( 2004).     We review conclusions of law de novo. Sunnyside Valley Irrigation

Dist. v. Dickie, 1.49 Wn.2d 8.73, 880, 73 P. 3d 369 ( 2003).

                                        I. MODIFICATION OF THE EASEMENT


          Plattner first argues that the trial court erroneously determined that the Road Relocation

Agreement modified the entire easement by making it coextensive with the paved road. We

disagree.


            The interpretation of an instrument conveying an easement is a mixed question of law

and    fact. Sunnyside, 149 Wn.2d         at   880. The intention      of   the   parties   to the instrument is   a
No. 43938 -7 -II




question of fact, but the legal consequence of their intention is a question of law. Sunnyside, 149

Wn.2d at 880.


          When interpreting an instrument conveying an easement, the court' s duty is to give effect

to the   parties'   intention. Zobrist        v.   Culp,   95 Wn.2d 556, 560, 627 P. 2d 1308 ( 1981).   This


intention is derived from the instrument as a whole. Zobrist, 95 Wn.2d at 560. A court will

consider extrinsic evidence of the parties' intent only if the instrument is ambiguous. Sunnyside,

149 Wn.2d at 880. An instrument is ambiguous if its language is uncertain or more than one

interpretation is reasonable. Jensen v. Lake Jane Estates, 165 Wn. App. 100, 105, 267 P. 3d 435

 2011).


A.        Challenged Finding ofFact

          Plattner challenges the trial court' s finding of fact 15, asserting that it determined " the

easement     did    not need   to be 30 [ feet]      wide."    Br. of Appellant at 16. Plattner claims that the


easement is 30 feet wide regardless of the road' s width; thus he argues that finding of fact 15 is

erroneous "[ a] s_amatter        of law."      Br. of Appellant at 22. But Plattner mischaracterizes the trial


court' s finding.

           On its face, finding of fact 15 is a factual finding about the width of the road, not that of

the   easement.      Finding   of   fact 15    states   in its entirety, " The road does not need to be 30 feet wide


in the   curved area or at      any   point."      CP at 72. Because Plattner fails to argue that finding of fact

 15 is erroneous as a matter offact, we do not consider Plattner' s factual challenge further. See

Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).




                                                                  5
No. 43938 -7 -II




B.     Conclusions ofLaw

       Plattner claims that the Road Relocation Agreement modified only a portion of the

easement and that the easement' s other portions remained 30 feet wide under the original short


plat' s terms. Again, we disagree.


       The parties do not dispute the effect of the original short plat. The original short plat


created a curving, 30- foot - ide easement across the Bonnett Property for access, drainage, and
                            w

utility purposes. But the parties dispute the effect of the Road Relocation Agreement.

        In relevant part, the Road Relocation Agreement provided:


        The Grantor and the Grantee hereby agree that due to the sight distance
        requirements of the South Island Drive County Road and the existing access
        easement to [ the Plattner Property and the Bonnett Property], said access

        easement ...   shall be relocated in a Northwesterly direction. This easement
        relocation will be completed by June 15,   2004. The relocated easement shall
        equal   the "   as built" dimensions and location of the road to be constructed and in
        use   by   June 15, 2004.      At all times this road shall provide access to both [ the
        Plattner   Property   and   the Bonnett   Property], and at all times shall have a sufficient
        road bed to allow for fire and other emergency vehicles to access both lots.

CP_ 381 ( emphasis added).
   at


        The parties agree that the Road Relocation Agreement was unambiguous, yet they

dispute its meaning. Plattner claims that the Road Relocation Agreement altered the road

easement only to the extent that the newly constructed road was outside the easement described

on the original short plat. In contrast, Bonnett claims that the Road Relocation Agreement

modified the entire easement so that it was coextensive with the newly constructed road.




                                                         6
No. 43938 -7 -II




             We hold that the Road Relocation Agreement is unambiguous because only one
                                      2
interpretation is    reasonable.          See Jensen, 165 Wn. App. at 105. Nothing in the Road Relocation

Agreement itself suggests that only a portion of the easement was affected. By providing that

  t] he relocated easement shall equal the ` as built' dimensions and location of the road to be

constructed and      in   use   by   June 15, 2004," the Road Relocation Agreement relocated the entire


easement.        CP at 381.


             Arguing to the contrary, Plattner cites 810 Properties v. Jump, 141 Wn. App. 688, 170

P. 3d 1209 ( 2007).       But this case is unavailing. In Jump, two deeds specifically delineated the

width of an express easement, which was wider                 than the     road   it   contained.   141 Wn. App. at 699.

The burdened landowner sought to limit the easement' s width to the actual width of the road,


claiming that the     portions of         the   easement outside   the   road were unused.      141 Wn. App. at 699.

But the court rejected this argument as meritless, holding that the deeds determined the

dimensions of the express easement. 141 Wn. App. at 699.

             Like the deeds in Jump, which determined the express easement' s width, the Road

Relocation Agreement determined the width of the express easement here. Plattner' s argument

         3
fails.




2 Because the Road Relocation Agreement is unambiguous, we do not consider each party' s
alternative argument that extrinsic evidence supports its interpretation.


3 In a footnote, Plattner further asks us to amend the trial court' s ruling to clarify the location of
an implied easement. We decline to do so.




                                                               7
No. 43938- 7- 11




                                                       II. NUISANCE IN FACT


          Plattner next argues that the trial court erred by determining that Bonnett did not create a

nuisance in fact. We disagree.


A.         Challenged Findings ofFact

          Plattner further assigns error to two findings of fact that are relevant to his nuisance in

fact claim: findings 16 and 26. We reject these assignments of error because substantial

evidence supports both findings.


           1.    Finding ofFact 16

           Finding     of      fact 16   stated   in its entirety, " The Bonnetts installed metal fence posts


alongside the road. Some of the fence posts still remain. These posts do not meet the criteria for

a nuisance."         CP   at    72.   Substantial evidence supports this finding. First, Robert Bonnett testified

that he installed the metal fence posts along the sides of the road and that the posts remained on

one side.




           Second, the record supports the trial court' s finding that the metal fence posts did not

meet all        the criteria    of a nuisance      in fact.4   A nuisance in fact exists if a person uses his property

in a manner that unreasonably interferes with another owner' s use and enjoyment of real

property. Tiegs           v.   Watts, 135 Wn.2d 1, 13, 954 P. 2d 877 ( 1998).              The record here contains


substantial evidence             that installation of the      metal     fence   posts was not unreasonable.   Specifically,



4
    The   existence of a nuisance            in fact is   a question of    fact. Wash. Chocolate Co. v. Kent, 28
Wn.2d 448, 454, 183 P. 2d 514 ( 1947);                    see also   WILLIAM B. STOEBUCK & JOHN W. WEAVER, 17
WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW, § 10. 3, at 657 ( 2d ed. 2004)
     W]hether a given activity is a nuisance is a heavily laden question of fact. ").


                                                                     8
No. 43938 -7 -II




Robert Bonnett testified that he installed the metal fence posts in an area he believed was outside


the easement to protect the roadway from further damage by heavy trucks accessing the Plattner

Property. Bonnett' s belief was correct, and Plattner' s challenge to this finding of fact fails.

           2. Finding ofFact 26

           Next,   finding   of   fact 26   states   in its entirety, " Any   obstruction of the road easement by

the Bonnetts       was   temporary." CP at 74. The record shows that Bonnett parked a trailer, which

held a boat, on his property, and Plattner claimed that the trailer and boat encroached onto the

easement. But Bonnett eventually sold the boat because Plattner complained so often about it.

In addition, a flatbed truck blocked Plattner' s access while it was parked on the road to haul

away a shed that Bonnett sold.5 Robert Bonnett testified that the flatbed truck' s driver moved
forward so that Plattner could pass, and he did. Thus substantial evidence also supports the trial

                                                                     6
court' s   finding   that any     obstruction was       temporary.

           Plattner appears to claim that the easement road was also obstructed by Bonnett' s

installation of metal fence posts and a split -
                                              rail fence. But both were installed outside the road.

Because the road and the easement were coextensive, the metal fence posts and the split - ail
                                                                                        r




5 Bonnett testified that, for about one month, the shed sat adjacent to the road; he moved the shed
at Plattner' s request. Because the shed was not within the road, it did not obstruct the actual
easement.




6 Plattner further asserts that whether the roadway obstructions were temporary is immaterial to
whether they were actionable nuisances. Plattner is correct. A temporary condition can amount
to an actionable nuisance. See Miotke v. City ofSpokane, 101 Wn.2d 307, 332, 678 P. 2d 803
  1984) ( holding that the temporary nature of a nuisance affects the measure of damages).

Regardless, in concluding that Bonnett did not create a nuisance, the trial court did not rely on its
finding that the obstructions were merely temporary.



                                                                 9
No. 43938 -7 -II




fence   were not " obstruction[ s]   of   the   road easement."   CP at 74. Plattner' s challenge to this


finding of fact fails.

B.       Conclusions ofLaw

         Plattner claims that the trial court erred by concluding that Bonnett did not create a

nuisance in fact. We disagree.


         A nuisance is a substantial and unreasonable interference with the use and enjoyment of

another person' s   land.   Grundy   v.   Thurston    County,   155 Wn. 2d 1, 6, 117 P. 3d 1089 ( 2005);    see




RCW 7. 48. 010. The trial court' s conclusion that Bonnett did not create a nuisance is supported

by its findings because the trial court did not find that Bonnett acted unreasonably. In declining
to make that finding, the trial court considered Bonnett' s actions in installing the metal fence

posts, installing the split - ail fence, and planting trees along the property line.
                            r
          Plattner claims that the trial court' s conclusion that Bonnett did not create a nuisance is

inconsistent with its order requiring Bonnett to remove the remaining metal fence posts and the

split - ail fence. But Plattner is mistaken. The trial court ordered removal of the metal fence
      r

posts and split -rail fence because they interfered with Plattner' s right of easement. Even if

Bonnett interfered with the use and enjoyment of Plattner' s property, the interference is not a

nuisance in fact unless it was unreasonable. See Grundy, 155 Wn.2d at 6. The trial court' s

factual findings support its legal conclusion that Plattner did not establish a nuisance claim.




 7 Because Plattner' s nuisance claim fails, the trial court did not err by failing to award damages
 and reasonable attorney fees for the nuisance claim. Thus we decline to address Plattner' s
 assertion that RCW 7. 48. 010 authorizes an award of reasonable attorney fees.



                                                          10
No. 43938 -7 -II




                                                 III. STATUTORY TRESPASS


       Plattner further argues that the trial court erred by ( 1) finding that Bonnett did not act

intentionally when injuring Plattner' s video camera and ( 2) failing to award treble damages and

attorney fees   under        RCW 4. 24. 630( 1).      We disagree.


A.      Challenged Finding ofFact

       In finding of fact 23, the trial court determined that Robert Bonnett damaged a video

camera on the Plattner Property, but that the record failed to show by a preponderance of the

evidence that Bonnett did so intentionally. Plattner contends that " substantial evidence

contradicts the trial court' s findings" because the trial court failed to make the finding Plattner

promoted as to Bonnett' s intent. Br. of Appellant at 30. This argument lacks merit.

        We do not retry the facts on appeal, weigh conflicting evidence, or judge the credibility

of witnesses.      In   re   Marriage of Rich, 80 Wn.          App.    252, 259, 907 P. 2d 1234 ( 1996); In re


Marriage of Thomas, 63 Wn.               App.    658, 660, 821 P. 2d 1227 ( 1991).          Instead, when the trial


court' s factual_findings have the support of substantial evidence, w_ accept those findings even
                                                                    we

though we may have resolved the factual dispute differently. Sunnyside, 149 Wn.2d at 879 -80.

        Plattner testified that his video camera captured images showing that Bonnett used a pair

of long -handled pruners to strike the camera twice. According to Plattner, Bonnett " wanted to

                                         lens                         1 Report        Proceedings   at   91.   As the trier of
apparently   try   to   destroy    the          of   my   camera."               of




fact, the trial court had no obligation to believe this testimony. Scanlan v. Smith, 66 Wn.2d 601,

603 -04, 404 P. 2d 776 ( 1965).            Plattner' s argument fails.




                                                                 11
No. 43938 -7 -II




B.        Conclusions ofLaw

          RCW 4.24. 630( 1) authorizes an award of treble damages, plus reasonable attorney fees

and costs, payable      by   any " person       who goes onto       the land    of another and ...     wrongfully injures

personal    property   or   improvements to          real estate on     the   land." See Clipse v. Michels Pipeline


Constr., Inc., 154 Wn.           App.     573, 576 -77, 225 P. 3d 492 ( 2010). RCW 4. 24. 630( 1) further states


that " a person acts ` wrongfully' if the person intentionally and unreasonably commits the act or

acts while    knowing,      or   having     reason   to know, that he      or she   lacks   authorization   to   so act."   See


Clipse, 154 Wn. App. at 580 ( a " wrongful" act must have been intentional).

          Because Bonnett did not damage Plattner' s video camera intentionally, Bonnett did not

wrongfully injure Plattner' s personal property. Therefore RCW 4. 24. 630( 1) cannot support an

award of treble damages or reasonable attorney fees and costs.

                                                          IV. DUE PROCESS


           Lastly, Plattner argues that the trial court violated his constitutional right to due process

of    law by enjoining him         to   remove "   his farm    gate,   including    the   southernmost   post."    CP at 76.


This argument lacks merit.


           Citing Mullane        v.   Central Hanover Bank &           Trust Company, 339 U.S. 306, 314, 70 S. Ct.

652, 94 L. Ed. 2d 865 ( 1950),              Plattner claims that he was denied an opportunity to be heard

because Bonnett'       s counterclaim alleged             that Plattner'   s gate —but not    his   gateposts—     unlawfully

                                                      8
interfered    with access        to his   driveway.        But Mullane merely requires that a party receive notice



8
     Plattner does not contest the trial court' s conclusion that his farm gate interfered with Bonnett' s
easement rights. He also does not deny that he was served with the counterclaim.



                                                                  12
No. 43938- 7- 11




reasonably calculated under the circumstances to apprise the party of the nature of the claims

against him. 339 U. S. at 314. Here, the allegations in Bonnett' s counterclaim were reasonably

calculated to apprise Plattner that his gate, including its posts, unlawfully interfered with

Bonnett' s property rights. Plattner' s claim fails.

                                   ATTORNEY FEES ON APPEAL


        Citing   RCW 7. 48. 010   and   RCW 4. 24. 630( 1),   Plattner requests reasonable attorney fees

and costs on appeal. Under RAP 18. 1, the prevailing party is entitled to attorney fees on appeal

when applicable law authorizes the award. See McGuire v. Bates, 169 Wn.2d 185, 191, 234 P. 3d

205 ( 2010).   We deny the request because Plattner is not the prevailing party.

        Affirmed.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06.040, it is so ordered.




We concur:




                                                       13
