                                                                        FILED 

                                                                      DEC 24,2013 

                                                              In the Office of the Clerk of Court 

                                                            W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


KARLAEASH,                                  )
                                            )        No. 31059-1-111
                      Appellant,            )
                                            )
       v.                                   )
                                            )
ROBERT 1. RUSSELL, an unmarried             )        UNPUBLISHED OPINION
person and KATHERINE BACHMAN                )
a.k.a. KATHERINE RUSSELL, and               )
unmarried person,                           )
                                            )
                      Respondent.           )

       KORSMO, C.J. - This appeal from a preliminary injunction ruling involves a

dispute between neighbors over watering a garden near the property line. We affIrm and

remand for trial.

                                        FACTS

       Appellant Karla Eash and respondents Robert Russell and Katherine Bachman are

neighbors. Respondents have a flower garden on the eastern boundary of their property

adjoining Ms. Eash's land. Ms. Eash has a fence on her side ofthe property line adjacent

to the garden area.
No. 31059-I-III
Eash v. Russell


       Respondents water their plants and have placed a drip line on the side of the fence

facing their property. The watering of the area results in spray hitting the wooden

supports for the fence and also crossing the property line. Water also occasionally pools

on Ms. Eash's property.

       Ms. Eash filed suit and noted a motion for a preliminary injunction to stop the

respondents from trespassing in person or by water. The court heard the matter 19 days

later. After taking testimony and hearing argument, the court entered an "Order Granting

Temporary Injunction." It enjoined the respondents pendente lite from "trespass or

entering upon the property of the plaintiff either in person or by flooding plaintiffs land

to the extent water pools on that land."

       Ms. Eash then appealed to this court.

                                           ANALYSIS

       Appellant argues that the court heard evidence and converted the preliminary

injunction hearing into a trial on the merits, therefore entitling her to all of the requested

relief from trespass. Since we do not believe the court decided the case on the merits, we

reject Ms. Eash' s argument and affirm.

       An order granting a preliminary injunction is reviewed for abuse of discretion.

Rabon v. City o/Seattle, 135 Wn.2d 278,285,957 P.2d621 (1998). The same standard

applies to a permanent injunction. City 0/ Bremerton v. Sesko, 100 Wn. App. 158, 995

P.2d 1257 (2000). Discretion is abused when it is exercised on untenable grounds or for

                                               2

No. 31059-1-III
Eash v. Russell


untenable reasons. Federal Way Family Physicians, Inc. v. Tacoma Stands Up for Life,

106 Wn.2d 261,264, 721 P.2d 946 (1986); State ex rei. Carroll v. Junker, 79 Wn.2d 12,

26,482 P.2d 775 (1971).

       The primary purpose of a preliminary injunction is to preserve the status quo until

such time that a trial on the merits can take place. State ex rei. Pay Less Drug Stores v.

Sutton, 2 Wn.2d 523, 98 P.2d 680 (1940). Generally, the party seeking a preliminary

injunction must make the same showing on the merits as would be required for a

permanent injunction. See, e.g., Rabon, 135 Wn.2d at 284. These include, showing "a

clear legal or equitable right, that there is a well-grounded fear of immediate invasion of

that right, and that the acts complained of have or will result in actual and substantial

injury." Id. at 284. Because the purpose of a preliminary injunction is to preserve the

status quo, "a preliminary injunction should not give the parties the full relief sought on

the merits of the action." McLean v. Smith, 4 Wn. App. 394,399,482 P.2d 798 (1971).

       Ms. Eash argues that the court converted the preliminary injunction into a

permanent one by hearing the case on the merits. We disagree. A court is permitted to

take evidence at a preliminary injunction hearing and sometimes must do so in order to

determine whether the party has suffered actual or substantial injury. Tyler Pipe Indus. v.

Dep'tofRevenue, 96 Wn.2d 785, 794, 638 P.2d 1213 (1982). However, when

conducting a preliminary injunction hearing, the court must not determine the ultimate

merits of the claim. Rabon, 135 Wn.2d at 285.

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No. 31059-I-III
Eash v. Russell


       Merely taking evidence does not convert a preliminary hearing into a final

hearing. Instead, we must look to the court's intent. Here, the trial court clearly intended

its ruling to be a preliminary injunction. The order itself identifies the relief granted as a

"Temporary Injunction." The order itself refers to the injunction as pendente lite or

"pending litigation." The court's letter to the parties indicates that it is granting a

preliminary injunction in part. The transcript of the June 29 hearing-two days after the

preliminary injunction hearing-expressly reminded the parties that the ruling was

"designed to prevent irreparable harm between now and the date of the trial." Report of

Proceedings (RP) (June 29, 2012) at 40. The court went on to advise the parties that all

of the issues eventually would "be decided at trial." Id.

       The authorities Ms. Eash relies upon do not require a different result. In Rabon,

the court was primarily concerned with the legal questions of preemption and conflict of

laws. The court needed to review the facts, but it did not determine them as the action

was brought after an administrative appeal process had determined the facts of the case.

Rabon, 135 Wn.2d at 283-84. Nothing in Rabon supports the proposition that taking

evidence at a preliminary hearing results in a trial on the merits.

       Ms. Eash also argues that the court clearly erred by not ordering the removal of the

hose from her fence. If this had been a trial on the merits resulting in a permanent

injunction, we would agree. Even if de minimis, the act is a clear trespass presuming that

the fence is fully on Ms. Eash's property. The court did not remedy that condition

                                               4

No. 31059-1-111
Eash v. Russell


pending trial, however, because Ms. Eash did not establish that she was being

substantially injured by the action. After trial, however, the trespass-if such it be-

would be remediable. At this point, it is not.

       The trial court did not abuse its discretion in granting only partial equitable relief

pending the expected trial on the merits. It had tenable grounds for denying reliefwhere

appellant had not established a significant harm would occur before trial.

       The preliminary injunction is affirmed and the case is remanded for trial.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                          Korsmo, CJ.

WE CONCUR:



                                                          Kulik,1.




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