                                                            rILE:0
                                                    toURT OF APPEALS DIV
                                                     STATE OF WASHINGTON               rdts;'ell 0!


                                                     2018 AUG -6 All 9: 41_




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MATTHEW MILCIC and RACHEL                 )
MILCIC, individually and as a marital     )       DIVISION ONE
community,                                )
                                          )       No.,76606-6-I
                       Appellants,        )
                                          )       UNPUBLISHED OPINION
                  v.                      )
                                          )
JOHN ESTES and ANNE ESTES,                )
individually and as a marital             )
community,                                )
                                          )
                       Respondents.       )       FILED: August 6, 2018
                                          )

       DWYER, J. — Matthew and Rachel Milcic sued John and Anne Estes for

damages and other relief after the Estes cut branches off their trees, built an

encroaching fence, painted the words "PULL YOUR WEEDS!" on the Milcics'

side of the fence, and placed unwanted fill dirt on the Milcics' property. The trial

court granted partial summary judgment for the Milcics on all of their causes of

action, including nuisance, timber trespass, spite fence, and damage to land or

property. Following a trial on damages, the court awarded the Milcics some, but

not all, of their requested damages. The court denied their request for an award

of attorney fees and costs.
,   ,No. 76606-6-1/2

           The Milcics appeal the trial court's adverse rulings on damages and fees.

    We remand for further proceedings on the Milcics' request for attorney fees and

    costs. We otherwise affirm.



           The Milcics and Estes are next door neighbors in Kirkland, Washington.

    In 2013, the Estes cut branches off trees located on the Milcics' property.

    Around the same time, the Estes began to build a fence along the parties'

    common boundary. When a dispute regarding fence encroachments arose, the

    parties submitted it to mediation.

           In April 2014, the parties executed a settlement agreement whereby the

    Estes agreed, among other things, to remove both the excess dirt from the

     Milcics' property and portions of fence footings that were visible above ground.

           In July 2014, the Estes painted the words "PULL YOUR WEEDS!" in

     white, 10-inch block letters on the Milcics' side of the Estes'fence. The words

     ran roughly the length of one fence panel.

           The Milcics' attorney informed the Estes by letter that the Milcics would file

     suit if the Estes did not remove the message from the fence. The Estes did not

     respond.

            In April 2015, the Milcics filed the present action. The complaint alleged

     several causes of action, including private nuisance, trespass, timber trespass,

     spite fence, quiet title and damages to land and property. Shortly thereafter, the

     Estes offered to remove the painted message if the Milcics dismissed their

     complaint. The Milcics rejected the offer, stating, "If you were willing to do so

                                               2
No. 76606-6-1/3

voluntarily, . . . you could have removed the sign at any time for the past nine

months. After enduring nine months of your shenanigans, the Milcics will not

accept that meager proposal."

       The Milcics moved for partial summary judgment, alleging there were no

issues of material fact regarding the Estes' branch cutting, fence encroachments,

and deposition of fill dirt on the Milcics' property. Following additional boundary

surveys and supplemental briefing, the court granted partial summary judgment

for the Milcics "on all . . . causes of action." The court granted the Milcics'

equitable relief for the fence encroachments, including the removal of all

encroaching portions of the fence. The court reserved damages and attorney

fees for trial. The Estes sought, and this court denied, discretionary review of the

partial summary judgment order.

       In January 2017, the matter proceeded to trial solely on the issues of

damages and attorney fees and costs. Rachel Milcic testified that the Estes cut

branches off their trees and put fill dirt on their property without their permission.

She said the branch removal ruined the beauty and privacy of the Milcics'

property. The loss of the branches upset her and she did not sleep well. She

also testified that the Milcics were not sure where the property line was when the

branches were cut.

       Rachel testified she was "shocked," "horrified," and "scared" when the

Estes painted the "PULL YOUR WEEDS!" message on the fence facing the

Milcics' property. She "had real trouble sleeping that night" and no longer felt

that she and her children were safe. She testified that before the painted

                                           3
No. 76606-6-1/4

message appeared, her family spent around 12 hours per week in her yard.

After the message appeared, they spent less than an hour a week in the yard.

She valued her use of the yard at $40 per day. She testified that the message

was visible for 922 days.

       On cross-examination, John Estes, appearing pro se, asked Rachel

whether the Estes had ever offered to remove the fence message. The Milcics'

counsel objected, citing ER 408 and arguing that the question impermissibly

called for evidence of a settlement offer. The court overruled the objection

stating, "Here liability has already been established because Judge Benton found

in your favor on all those claims. So I don't think. .. ER 408 would preclude

admission of this alleged offer to paint over the sign." Rachel then testified that

there had been "one or more settlement offers," but that the Milcics found them

insufficient.

       Matthew Milcic corroborated much of his wife's testimony. He testified

that Rachel was "distraught" upon discovering the cut branches, that they both

love plants, and that neither of them slept well that night. He also testified that

"[Me were unsure where the property line was" until after the Estes' second and

final branch cutting.

       Matthew described his reaction to the "PULL YOUR WEEDS!" message

as "shock and stunned." The Milcics did not have dinner that night and "didn't

sleep well" for about a week. They also "didn't feel safe and secure" in their

home anymore and were "mistrustful" of the Estes. As a result, the Milcics



                                          4
No. 76606-6-1/5

installed a surveillance system to "protect our property" and to "capture any

trespasses by the Esteses on our land." The system cost $1,035.30.

       Matthew testified that the fence message could be seen from roughly 25

percent of their property and prevented the Milcics from enjoying their yard.

Their "dreams and aspirations" for landscaping the yard "got instantly crushed

into a reminder of, you don't get to enjoy this part of your property that you had

hopes and dreams for." He estimated that the affected portion of his property

had a market value of $152,500.

       After the Milcics pulled the weeds and finished landscaping the area near

the fence message, Matthew asked John Estes if he could remove the message

within 10 days. John said,"Yeah, probably," but the message was not removed.

       In October 2016, the Estes took down the fence panels displaying the

message, but the words "PULL YOUR" were still visible through a coat of paint

after the panels were reinstalled.

       On cross-examination, Matthew conceded that he had not seen a doctor

or any medical professional for his emotional distress and had no medical bills

related to that distress. Matthew also conceded that he did not accept the Estes'

April 2015 offer to remove the fence message. The court again overruled the

Milcics' objection that the settlement evidence was inadmissible under ER 408.

       Matthew acknowledged that after the parties' mediation, the Estes

removed the fill dirt from the Milcics' property and took the cement "footers" down

to grade as agreed. Following the court's ruling on partial summary judgment,

the Estes removed all encroaching footers and fence posts.

                                          5
No. 76606-6-1/6

       John Estes testified that when he cut the branches on the Milcics' trees,

he believed the trees were on his property. He stopped cutting branches as soon

as the Milcics asked him to stop. He also complied with the mediation

agreement by removing the fill dirt and cutting the footings to grade.

       John testified that he painted the "PULL YOUR WEEDS!" message to

protest the "weeds and invasive vegetation coming onto my property." He

conceded that Matthew Milcic told him in August 2014 that he had pulled the

weeds and that he wanted the message removed. Approximately nine months

later, John offered to remove the message if the Milcics dismissed their

complaint.

       On cross-examination, the Milcics' counsel asked whether John had

planned to leave the message on the fence until the Milcics filed suit. John

responded, "I left it there because, even though they had cleaned up their side

yard, I still saw all the debris on the front, I saw 18-inch dandelions in their front

yard every time we drove past their house."

       In closing argument, John argued in part that the Milcics "provided this

court with no proof of emotional distress, no doctor notes, no medical bills, no

professional diagnosis." The Milcics' counsel responded that "[d]octor's notes

and physiological symptomology is not required to prove emotional distress

damages" where the causal act is intentional. Counsel also argued that

emotional distress damages "are subjective" and required the court "to rule

based upon [whether] you find the plaintiffs were credible during their testimony

on the stand."

                                           6
No. 76606-6-1/7


      The court ruled that the Milcics were entitled to some, but not all, of their

alleged damages. It found in pertinent part as follows:

      4. The Milcics have suffered $800 in damages for the June 15,
      2013 survey which confirmed that the trees from which the
      defendants cut branches were on the plaintiffs' property. . ..

      5. The 2015 survey that cost the Milcics $850 is not a recoverable
      item of damages.

      6. The $1,560.64 sought... for the installation of a surveillance
      system is not a reasonable amount of recoverable damages in this
      action.

      7. The tortious actions of the Esteses are the "but-for" or cause-in-
      fact of the Milcics incurring the expense of installing a surveillance
      system.

      8. The conduct of the defendants does not sufficiently constitute an
      award of damages for the plaintiffs'lost enjoyment of their property.

      9. The replacement cost for the two trees from which the
      defendants cut branches is $1,662.74.

      10. The replacement cost for these two trees is an appropriate
      measure of damages in this case.

      11. The plaintiffs also incurred $547.50 in recoverable damages to
      hire professional arborist Kristine Malloy to value the damaged
      trees.

      12. The plaintiffs also incurred an additional $547.50 in
      recoverable damages to reasonably compensate Kristine Malloy to
      testify as an expert at trial.

      13. The defendants' violations of the timber trespass statute were
      not casual or involuntary and the defendants did not have probable
      cause to believe that the land upon which such timber trespasses
      were committed was their own.

      14. The $800 in damages for the survey, $1,662.74 in damages for
      the replacement cost of the trees, and the $1,095 in damages for
      expert witness fees were all proximately caused by the defendants'


                                         7
No. 76606-6-1/8

      violations of the timber trespass statute RCW 64.12.030 and should
      accordingly be trebled.

      16. That amount of damages trebled is $10,673.22.

      17. The encroachment of the defendants'fence onto the plaintiffs'
      property was de minimis.

      18. In light of the deminimis nature of the encroachment, an award
      of damages for said encroachment is not reasonable in this case.

      19. The plaintiffs have not provided sufficient evidence to establish
      that they have suffered emotional distress.

(Emphasis added.)

The court also entered the following conclusions of law:

      1. The defendants proximately caused damages to the plaintiffs in
      the amount of $3,557.74 for the defendants' violations of the timber
      trespass statute RCW 64.12.030.

      2. The defendants have not proven by a preponderance of the
      evidence that their violations of the timber trespass statute qualify
      for mitigation under RCW 64.12.040.

      3. The plaintiffs are entitled to an award of treble damages for
      timber trespass in the amount of $10,673.22.

      4. The plaintiffs are not awarded damages for the cost of a
      surveillance system because the second prong of proximate cause
      —that is, legal cause—has not been met.

      5. The plaintiffs are not awarded damages for the plaintiffs'lost
      enjoyment of their property because the level of conduct does not
      sufficiently constitute an award of damages.

       6. The plaintiffs are not awarded damages for emotional distress.

      7. The plaintiffs are the prevailing parties in this action.

(Emphasis added.)




                                         8
No. 76606-6-1/9

        By separate order, the court denied the Milcics' request for an award of

costs and attorney fees under RCW 4.24.630, stating:

       Any damage to plaintiffs' land was de minimis and this court did not
       award any damages as the result. Consequently, the court does
       not find that award of attorney's fees and costs are appropriate
       under RCW 4.24.630.

The Milcics appeal the court's rulings relating to damages and attorney fees.

                                               II

       The Milcics contend that the court erred in awarding no damages for their

alleged lost enjoyment of their property on their trespass and private nuisance

claims.1 They claim they were entitled to such damages due to the significant

length of time —922 days— that the fence message remained in place. They

maintain the record does not support the trial court's finding and conclusion that

the Estes' conduct did not warrant an award for the claimed damages.

        We review a trial court's award of damages for abuse of discretion.

Mason v. Mortg. Am., Inc., 114 Wn.2d 842, 850, 792 P.2d 142(1990). The court

abuses its discretion when its exercise of discretion is "'manifestly unreasonable,

or exercised on untenable grounds, or for untenable reasons." John Doe v.

Puget Sound Blood Ctr., 117 Wn.2d 772, 778, 819 P.2d 370(1991)(quoting

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). We will

reverse the amount of damages only if it is outside the range of relevant

evidence, shocks the conscience, or results from passion or prejudice. Mason,




        1 Damages for nuisance may include lost enjoyment of the use of property. Miotke V. City
of Spokane, 101 Wn.2d 307, 332,678 P.2d 803(1984).

                                               9
No. 76606-6-1/10

114 Wn.2d at 850. The credibility and weight of witness testimony are matters

solely for the trier of fact. Hilltop Terrace Homeowner's Ass'n v. Island County,

126 Wn.2d 22, 34, 891 P.2d 29(1995).

        Here, it is clear from the court's findings and conclusions that it

determined the Estes' conduct was insufficient to warrant the Milcics' claimed lost

enjoyment of property. This determination involved weighing the evidence

relating to the entirety of the Estes' conduct, including their April 2015 offer to

remove the painted message,2 against the Milcics' reactions to those events.

The court was free to discount or reject the Milcics' testimony regarding their

alleged lost enjoyment. Although the court entered no findings on the latter point,

the absence of a finding on a material issue is deemed a finding against the party

with the burden of proof, here the Milcics. Pacesetter Real Estate, Inc. v.

Fasules, 53 Wn. App. 463, 475, 767 P.2d 961 (1989).

        On this record, and in light of our deference to the trial court's view of the

weight and credibility of the evidence, we cannot say the court abused its

discretion in declining to award damages for the Milcics' claimed lost enjoyment

of their property.

                                                  III

        The Milcics next contend that the trial court abused its discretion in failing

to award them damages for alleged emotional distress caused by the Estes'



         2 Contrary to the Milcics' assertions, the court did not abuse its discretion in admitting and
relying on the Estes' April 2015 offer to remove the painted message. 5A KARL B. TEGLAND,
WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 408.5, at 62(6th ed. 2016)(noting that ER
408 only bars settlement offer evidence introduced by the offeree).

                                                  10
No. 76606-6-1/11

fence message and branch cutting. A plaintiff who proves liability for intentional

wrongful conduct is entitled to damages for emotional distress "upon a showing

of actual anguish or emotional distress." Cagle v. Burns & Roe, Inc., 106 Wn.2d

911, 912, 726 P.2d 434 (1986). The distress need not be severe and, contrary to

the Estes' arguments below, the plaintiff need not demonstrate objective

symptomology, medical bills, or a medical diagnosis. Kloepfel v. Bokor, 149

Wn.2d 192, 197-201, 66 P.3d 630 (2003); Nord v. Shoreline Say. Ass'n, 116

Wn.2d 477, 482-85, 805 P.2d 800(1991).

       Here, the trial court found the Estes engaged in intentional wrongful

conduct, including nuisance, timber trespass, and a spite fence. The trial court

also found, however, that the Milcics "have not provided sufficient evidence to

establish that they have suffered emotional distress." The Milcics challenge that

finding, pointing to their testimony that they suffered initial shock and distress,

trouble sleeping for a week, and ongoing feelings of insecurity and fear of further

invasions. But the trial judge's evaluation of the sufficiency of the evidence

includes determinations as to the weight and credibility of the evidence—matters

that require our deference. The Milcics' counsel encouraged the court to make

those determinations during closing argument, stating that the emotional distress

claim was "subjective" and required the court "to rule based upon [whether] you

find the plaintiffs were credible during their testimony."

       Given the testimony and argument below and the deference we pay to the

trial court's evaluation of the weight and credibility of the evidence, we cannot



                                          11
No. 76606-6-1/12

say that the trial court erred in concluding that the Milcics did not prove their

claimed damages for emotional distress.3

                                                IV

       The Milcics next contend that the trial court erred in concluding that the

Estes' conduct was not the legal cause of their purchase and installation of a

surveillance system. To determine if legal causation exists, a court considers

whether "'as a matter of policy, the connection between the ultimate result and

the act of the defendant is too remote or insubstantial to impose liability."

Michaels v. CH2M Hill, Inc., 171 Wn.2d 587,611, 257 P.3d 532(2011)(quoting

Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 478-79, 951 P.2d 749

(1998)). The determination rests on "mixed considerations of logic, common

sense,justice, policy, and precedent." Michaels, 171 Wn.2d at 611 (internal

quotation marks omitted)(quoting Schooley, 134 Wn.2d at 478-79).

        The Milcics offer no relevant precedent supporting their argument

regarding legal causation.4 Nor do they advance any persuasive arguments

supporting their claim that logic, common sense, justice, and policy favor the

imposition of liability for the surveillance system. There was never any doubt as


        3 The    Milcics claim that the court abused its discretion by excluding exhibit 47—a photo
of their daughter playing in the area near the painted message. The party seeking review has the
burden of providing this court with an adequate record to review the issues raised on appeal.
Fahndrich v. Williams, 147 Wn. App. 302, 307, 194 P.3d 1005(2008). Because exhibit 47 is not
in the record before us, we need not address this claim. We note, however, that the photograph
would have been largely cumulative of Matthew's testimony regarding his emotional response to
seeing his daughter playing beneath the painted message.
          4 Citing Alcaraz v. State, 2002 WY 57, 44 P.3d 68 (2002), the Milcics argue that the
Estes' repeated incursions onto their property reasonably justified, and warranted recovery for, a
surveillance system for "deterring future trespasses." Alcaraz, however, is not germane. The
Alcaraz court upheld restitution in a criminal case for a grocery store's installation of a
surveillance system to investigate ongoing unsolved thefts.

                                                12
No. 76606-6-1/13

to who had trespassed onto the Milcics' property. The Estes readily admitted

cutting the branches, painting the message, and installing the fence. There was

therefore no need for a surveillance system to catch the perpetrators, and no

reason to believe that a surveillance system would act as a deterrent to future

incursions. In addition, except for the branch cutting, the trespasses were de

minimis incursions. Thus, the trial court did not err in concluding that the Estes'

conduct was not a legal cause of the Milcics' surveillance system expenses.

                                         V

      The Milcics also claim that the trial court abused its discretion in failing to

award nominal damages for injury to their land under RCW 4.24.630(1). The trial

court ruled that any damage to the Milcics' land was "de minimis" and therefore

did not warrant a damage award. In closing argument, the Milcics' counsel told

the court:

       Now, I will note, Your Honor. That the damage-to-land piece is
       based upon the unauthorized placement of fill dirt. As Mr. Estes
       testified, that fill dirt was since removed and part of the landscaping
       work filled that area in with the Milcics' own dirt. So we're only
       seeking... $1 in nominal damages.

The court's decision to not award nominal damages was within the range of the

evidence. There was no abuse of discretion.

                                         VI

       Last, the Milcics argue that once the trial court granted partial summary

judgment on their claim for damage to land, it was required to award them

attorney fees and costs under RCW 4.24.630(1). The statute states:



                                         13
No. 76606-6-1/14

        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. For purposes of
        this section, 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.
        Damages recoverable under this section include, but are not limited
        to, damages for the market value of the property removed or
        injured, and for injury to the land, including the costs of restoration.
        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.

RCW 4.24.630(1)(emphasis added).5 We conclude that the Milcics were

entitled to some of their fees and costs under this statute.

        The question of a party's entitlement to attorney fees is an issue of law we

review de novo. Bloor v. Fritz, 143 Wn. App. 718, 747, 180 P.3d 805(2008).

The reasonableness of a fee award is a matter within the trial court's discretion

and is reviewed for abuse of that discretion. Bloor, 143 Wn. App. at 747. In the

present case, the Milcics argued on summary judgment that the Estes violated

RCW 4.24.630(1) by building a fence that encroached on their property and

placing fill dirt on their property without permission.6 In declining to award fees



         5 Subsection (2) of the statute explicitly excludes its application where liability for
damages is provided under RCW 64.12.030, the timber trespass statute. RCW 4.24.630(2);
Gunn v. Riley, 185 Wn. App. 517, 525, 344 P.3d 1225(2015). RCW 64.12.030 contains no
provision for the award of attorney fees. Herring v. Pelavo, 198 Wn. App. 828, 841, 397 P.3d 125
(2017).
         6 The Milcics argued below that they were entitled to $43,738.44 in fees under this
statute, ER 904, and equitable principles of bad faith. They also argued that if the court declined
to award the full amount of the requested fees, it should at least award them fees attributable to
the damage to land claim, the Estes' baseless objections under ER 904, and the Estes' frivolous
interlocutory appeal. The Milcics claimed they incurred $25,235.55 in fees for the damage to

                                                14
No. 76606-6-1/15

and costs, the trial court ruled that "[a]ny damage to plaintiffs' land was de

minimis and this court did not award any damages as the result. Consequently,

the court does not find that award of attorney's fees and costs are appropriate

under RCW 4.24.630." The Milcics contend that the plain meaning of the

statutory language required an award of fees and costs once the court granted

partial summary judgment on their claim for injury to their land. We agree as to

one of their claimed injuries, but disagree as to the other.

        In its partial summary judgment, the court granted the Milcics relief on

their fence encroachment claim by ordering removal of the encroachments. In

doing so, the court demonstrated that it found all the requirements for a violation

of the statute, including "waste or injury to the land." RCW 4.24.630(1). At that

point, the statute required an award of reasonable, segregated attorney fees and

costs incurred prior to the entry of summary judgment on that claim.7

        The court did not err, however, in denying the Milcics fees_pnd costs for

the fill dirt claim that went to trial. Unlike the Milcics' fence encroachment claim,

the fill dirt claim did not result in a finding of damage or award of relief on partial

summary judgment. Instead, the court reserved those issues for trial. After trial,


land claim, $6,194.75 for the Estes' interlocutory appeal, and $1,657.20 for work related to the
Estes' ER 904 objections.
         7 After reviewing the pleadings and record, we view this as a case in which segregation of
fees and costs is entirely possible. On remand, the court should segregate the fees incurred on
this claim from those incurred on the other claims. We reiterate that the party seeking the award
of fees has the burden of proof. Loeffelholz v. Citizens for Leaders with Ethics Accountability
Now (C.L.E.A.N.), 119 Wn. App. 665,690-91, 82 P.3d 1199(2004). Failure to segregate, where
segregation is possible, may constitute failure to meet the burden of proof, which would justify a
denial of a fee award. Loeffelholz, 119 Wn. App. at 692. In the process of determining the
appropriate award, the trial court should address the Milcics' alternate bases for fees and costs
under ER 904 and bad faith. By directing the trial judge's attention to these alternate requests,
we do not indicate how the requests should be decided.

                                                15
No. 76606-6-1/16

the court concluded that the Milcics were not damaged by the fill dirt, which the

Estes had removed, and therefore fees and costs were not available under the

statute for that claim. We agree. Absent compensable damage, there was no

"waste or injury to the land" and, therefore, no violation of the statute requiring

fees and costs on the fill dirt claim.

       The Milcics also request fees on appeal. RAP 18.1 allows this court to

award reasonable attorney fees or expenses on appeal when applicable law

authorizes such an award. RCW 4.24.630 states that a person violating the

statute "is liable" for reasonable attorney fees and costs. We grant the Milcics'

request for reasonable attorney fees and costs on appeal, conditioned on their

segregation of the amount attributable to their claim for damage to land from

fence encroachments and their compliance with RAP 18.1.

       We deny the Milcics' request for attorney fees incurred during the Estes'

interlocutory appeal.

       Affirmed in part and remanded for proceedings consistent with this

opinion.



We concur:



                                                    emei, Acr

                                          16
