      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MJD PROPERTIES, LLC, a                          No. 71691-3-1
Washington limited liability company,
                                                DIVISION ONE
                    Respondent,

      v.                                        PUBLISHED OPINION


JEFFREY THORNTON HALEY,

                    Appellant.                  FILED: September8, 2015


       Leach, J. — Jeffrey Haley appeals the trial court's summary dismissal of

his nuisance and spite structure claims against his neighbor, MJD Properties

LLC, as well as the court's denial of his fee request.           Because Haley

demonstrated a genuine issue of material fact about the reasonableness of

MJD's driveway light installed in compliance with the Mercer Island Code, we

reverse the dismissal of his nuisance claim. And because a large planted tree, in

some circumstances, may be a spite structure prohibited by RCW 7.40.030, we

reverse the dismissal of Haley's statutory claim.    But the trial court properly

decided that Haley was not a prevailing party entitled to recover attorney fees

and costs. We remand for further proceedings consistent with this decision.

                                        FACTS


       Jeffrey Haley, John Pugh, and MJD Properties LLC own neighboring
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properties on Mercer Island. In December 2011, John Pugh formed MJD. MJD

then bought waterfront property next to Pugh's waterfront property from Nancy

and Duane Oyler. Haley's property sits inland, behind both properties.

       For many years, Haley attempted to acquire water access and a view

easement over the MJD property.        Before Haley bought his property, Pugh

planted a weeping copper beech tree on the Oylers' property, with their

permission, located 8 feet from what is now Haley's view window. In 2005, when

Haley purchased his property, the tree was about 16 feet tall. Haley claims the

Oylers gave him oral permission to trim the tree if it grew substantially taller. It

grew to be 21 feet tall. In August 2011, before the Oylers sold the property to

MJD, but after they had moved out, Haley, without their permission, trimmed

several feet off the top of the beech tree.     The Oylers assigned their claim

against Haley to MJD in May 2012.        MJD installed a 6-foot fence along the

property line.

       On July 10, 2012, MJD sued Haley for timber trespass, trespass, and

outrage. On July 30, 2012, Haley answered and asserted several counterclaims,

including that MJD had wrongfully interfered with Haley's property when it

removed Haley's columbine plant during the fence installation.

       In September 2012, MJD installed a light pole with a protective, adjustable

shield in his parking area. The light shines into Haley's bedroom windows. The

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bottoms of these windows are 10 feet higher than MJD's parking area. Haley

requested that MJD adjust the shield. When MJD refused, Haley complained to

the city.

        In November 2012, MJD removed the beech tree on its property and

planted an 18-foot cedar tree in the same location, 3 feet from Haley's property

line and 8 feet from his view windows. Haley's home has second story windows

and a deck, both with views and situated 5 feet from the property line shared with

MJD.    The cedar tree blocks Haley's view from his second story windows.         It

extends a foot above the eye level of a person standing on the second floor of his

home.       In a declaration, Pugh referred to the cedar tree, stating, "Based on

[Haley's] actions as a neighbor, I would prefer that landscaping block my view of

Mr. Haley's property which is in a constant state of disrepair."

        On January 28, 2013, Haley amended his answer and counterclaims to

include claims that the driveway light on MJD property created "excessive light at

night" with "inappropriately directed shielding" and that the excessively large and

dense cedar tree MJD planted created a nuisance.         He argued in subsequent

briefing that the tree was a spite structure prohibited by RCW 7.40.030.

        MJD moved for summary judgment on March 29, 2013. On April 26, the

trial court found Haley liable for trespass, reserving the issue of damages, and

dismissed all but two of his counterclaims.    It found an issue of fact existed for


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Haley's plant claim and requested additional briefing about the driveway light's

compliance with the Mercer Island Code. After further briefing from the parties,

on May 13, 2013, the trial court dismissed Haley's light claim.

       In a July 3, 2013, motion for summary judgment, MJD requested

$20,593.80 for damages and attorney fees.        On July 15, 2013, Haley offered

MJD's counsel $1,200.00 in settlement.      On July 31, Haley served on MJD a

proposed order of summary judgment to be entered against MJD for $39.75 for

Haley's columbine.    MJD opposed entry of the order. On August 2, 2013, the

trial court denied MJD's motion, transferred the case to mandatory arbitration

because the amount in controversy did not exceed $50,000.00, and reserved

MJD's request for attorney fees and costs for decision after the arbitration.

      Arbitration took place on December 5, 2013. The arbitrator awarded MJD

$8,100 in treble damages for the value, planting, and care of the beech tree and

awarded Haley $99 in treble damages for the planting, care, and maintenance of

his plant. Once offset, MJD recovered $8,001 in net damages.

       The trial court entered a judgment on the arbitration award, awarding MJD

$8,001.00 and attorney fees of $362.50 for Haley's failure to appear at his

deposition. It also awarded statutory costs of $555.35 to MJD as the prevailing

party. It denied Haley's request for fees and costs. The trial court denied both

parties' requests for attorney fees related to the arbitration. Haley appeals.
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                              STANDARD OF REVIEW


         This court reviews summary judgment orders de novo, performing the

same inquiry as the trial court.1 This court considers all facts submitted and all

reasonable inferences from the facts in the light most favorable to the nonmoving

party.2 This court affirms a summary judgment order if it determines that no

genuine issue exists as to any material fact.3

                                     ANALYSIS


         Haley presents three issues for this court to decide. First, can a driveway

light that complies with a local municipal code be an actionable nuisance?

Second, can a single large planted tree be a spite structure prohibited by RCW

7.40.030? Third, when two parties each prevail on a single claim in arbitration,

does chapter 4.84 RCW entitle both to awards of fees and costs as the prevailing

party?

Nuisance Claim


         Haley claims that the driveway light MJD installed constitutes a nuisance

because it causes excessive light to shine into Haley's bedroom windows. MJD



       1 LaCoursiere v. CamWest Dev., Inc.. 181 Wn.2d 734, 740, 339 P.3d 963
(2014).
      2 CR 56(c); Grundy v. Thurston County. 155 Wn.2d 1, 6, 117 P.3d 1089
(2005) (quoting Hiqhline Sch. Dist. No. 401 v. Port of Seattle, 87 Wn.2d 6, 15,
548P.2d 1085(1976)).
       3 Lakev v. Puqet Sound Energy, Inc.. 176 Wn.2d 909, 922, 296 P.3d 860
(2013).
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responds that a driveway light complying with a local municipal code and used

for security purposes cannot constitute a nuisance as a matter of law.4 MJD

asserts that so long as its light complies with the Mercer Island Code, Haley has

no right to restrict that light in any way. We disagree.

       RCW 7.48.010 defines "nuisance":


      The obstruction of any highway or the closing of the channel of any
      stream used for boating or rafting logs, lumber or timber, or
      whatever is injurious to health or indecent or offensive to the
      senses, or an obstruction to the free use of property, so as to
      essentially interfere with the comfortable enjoyment of the life and
      property, is a nuisance and the subject of an action for damages
       and other and further relief.

A nuisance includes acts that annoy, injure, or endanger the comfort, repose,

health, or safety of others and that "renders other persons insecure in life, or in

the use of property."5      An activity constitutes nuisance when it interferes

        4 MJD also argues that in the trial court Haley based his claim on per se
statutory nuisance under the Mercer Island Code and now changes his claim to
invoke general nuisance law. Generally, appellate courts do not consider issues
raised for the first time on appeal unless the issue raises manifest error affecting
a constitutional right. State v. Kirkman. 159 Wn.2d 918, 926, 155 P.3d 125
(2007). But MJD mischaracterizes Haley's nuisance argument. In Haley's
response to MJD's motion for summary judgment, Haley argued that the
driveway light not only was a per se nuisance in violation of the Mercer Island
Code but also violated Washington general nuisance statutes. And at the
summary judgment hearing, he argued that even if the light did not violate the
city code as nuisance per se, it still constitutes a general nuisance under
Washington statutes. The trial court called for additional briefing to determine if
the light constituted a per se violation of the city code and later granted MJD's
motion for summary judgment on the issue. Thus, we conclude that Haley
sufficiently argued general nuisance below so that he may appeal the trial court's
order granting MJD summary judgment on the issue.
       5 RCW 7.48.120; Lakev. 176 Wn.2d at 923.
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NO. 71691-3-1/7




unreasonably with a neighbor's use and enjoyment of his or her property.6 "In a

nuisance case, the fundamental inquiry always appears to be whether the use of

certain land can be considered as reasonable in relation to all the facts and


surrounding circumstances."7 To apply the nuisance doctrine, a court balances

the rights, interests, and convenience unique to the case.8

       Haley acknowledges that no Washington case holds light is a nuisance.

But he cites Riblet v. Spokane-Portland Cement Company9 to show that the court

must balance MJD's interests and his to resolve this case.    He contends that his


interest in a dark bedroom outweighs the negligible burden to MJD to adjust the

shield on the light.

       MJD contends that Riblet provides no guidance because the court

requires analogous facts and circumstances for a case to be controlling.         It

asserts that the driveway light in this case cannot compare with commercial dust

and smoke, the alleged nuisance in Riblet.

       MJD also contends that because the light does not violate the Mercer

Island Code, a court could not find the light to be unreasonable. MJD assumes


      6 Moore v. Steve's Outboard Serv.. 182 Wn.2d 151, 155, 339 P.3d 169
(2014) (quoting Tieqs v. Watts, 135Wn.2d 1, 13, 954 P.2d 877 (1998)).
      7 Riblet v. Spokane-Portland Cement Co., 41 Wn.2d 249, 254, 248 P.2d
380 (1952), overruled on other grounds by Bradley v. Am. Smelting & Ref. Co.,
104 Wn.2d 677, 709 P.2d 782 (1985).
       8 Riblet, 41 Wn.2d at 254.
       9 41 Wn.2d 249, 254, 248 P.2d 380 (1952), overruled on other grounds by
Bradley v. Am. Smelting & Ref. Co., 104 Wn.2d 677, 709 P.2d 782 (1985).
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NO. 71691-3-1/8




lawful structures or acts cannot be a nuisance.   But where nuisance exists, it is

not excused by the otherwise lawful quality of the business or structure causing

nuisance.10

       MJD relies on Collinson v. John L. Scott, Inc.,11 for the proposition that

rules of equity do not permit a court to find a lawfully constructed light a

nuisance. In Collinson, homeowners sued for nuisance when defendants built a

lawful condominium that obstructed the homeowners' view.12             This court

concluded that a building or structure does not constitute a nuisance merely

because it may obstruct a neighbor's view.13       MJD correctly notes the rule

applied in Collison: "'Equity cannot restrict one landowner to confer a benefit on

the other.'"14 But the facts here are different than those in Collison. Causing a

bright light to shine in a neighbor's bedroom window because of an unwillingness

to adjust the light shield does not compare to building a structure on one's own

property. And MJD makes no showing that requiring it to adjust a light shield will

deprive it of any use of its property.

       MJD cites no authority for its claim that a municipal code can modify the

definition of a nuisance adopted by the legislature.      Thus, we apply RCW

       10 Tiegs, 135 Wn.2d at 13-14; see Grundy, 155 Wn.2d at 7 n.5.
       11 55 Wn. App. 481, 483, 778 P.2d 534 (1989).
       12 Collinson, 55 Wn. App. at 483.
       13 Collinson. 55 Wn. App. at 488.
       14 Collinson. 55 Wn. App. at 488 (quoting Mclnnes v. Kennell. 47 Wn.2d
29, 38, 286 P.2d 713 (1955)).
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NO. 71691-3-1/9




7.48.010 to determine if Haley can assert his claim.         We limit our inquiry to

deciding if Haley has demonstrated that a genuine issue of fact exists for this

claim.


         MJD erected a light in its driveway during the course of litigation with

Haley. The light in MJD's driveway has a shield pulled down to prevent light from

escaping, but its current position allows bright light to shine directly into Haley's

bedroom window at night.       Pugh stated in his declaration that the light offers

protection and provides security and visibility in his garage and parking area. But

Haley stated in his declaration that the shield could easily be adjusted at minimal

cost in order to eliminate the light in Haley's window, while still providing light to

MJD's garage and parking area. MJD responds that the light complies with the

Mercer Island Code but does not claim that it must shine light into Haley's

window to provide the desired security and visibility.      MJD identifies no harm

resulting from an adjustment of the light shield.

         Viewing this evidence in the light most favorable to Haley, a trier of fact

could find that the driveway light, without the available adjustment of its shield,

offends the senses "so as to essentially interfere with the comfortable enjoyment

of" Haley's home. The trial court erred by dismissing Haley's nuisance claim on

summary judgment.
NO. 71691-3-1/10




Spite Structure

        Haley next challenges the court's summary dismissal of his claim that

RCW 7.40.030 prohibits the cedar tree MJD planted. MJD contends that RCW

7.40.030 does not apply to vegetation or trees planted by a landowner on its

property. MJD further contends that a single tree is not a structure prohibited by

the statute.


        RCW 7.40.030 provides,

        An injunction may be granted to restrain the malicious erection, by
        any owner or lessee of land, of any structure intended to spite,
        injure or annoy an adjoining proprietor. And where any owner or
        lessee of land has maliciously erected such a structure with such
        intent, a mandatory injunction will lie to compel its abatement and
        removal.

We must decide if this statute prohibits, as a spite structure, any single planted

tree.   We consider only a tree planted by a landowner and not any naturally

occurring tree.

        This court reviews de novo the meaning of a statute to determine and

carry out the legislature's intent.15 The court gives effect to the plain meaning of

statutory language as an expression of legislative intent.16 The legislature has




        15 Dep't of Ecology v. Campbell & Gwinn, LLC. 146 Wn.2d 1, 9-10, 43
P.3d 4 (2002).
       16 Rental Hous. Ass'n of Puget Sound v. City of Pes Moines. 165 Wn.2d
525, 536, 199 P.3d 393 (2009).
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NO. 71691-3-1/11




directed that its statutes "shall be liberally construed, and shall not be limited by

any rule of strict construction."17

       MJD relies primarily on an early case, Karasek v. Peier,18 where the court

held a fence was a structure, stating, "'In the broadest sense, a structure is any

production or piece of work artificially built up or composed of parts joined

together in some definite manner; any construction.'" We do not find this case

helpful because of the context in which the court made this statement. The court

quoted a definition of "structure" from Century Dictionary to support its rejection

of an argument that the word "structure," as used in the spite structure statute,

meant an offensive building.19 But the term "artificially" in this definition does not

require us to focus on natural versus man-made elements used to deliberately

create a barrier intended to spite a neighbor.        Instead, we look to see if the

barrier occurred naturally. Here, it did not.

       No reported Washington case has decided if the spite structure statute

prohibits an artificially located and planted tree.     But Lakes at Mercer Island

Homeowners Ass'n v. Witrak20 involved a similar inquiry. There, a homeowner

planted a row of trees along a property line, and this court held that those trees




       17 RCW 1.12.010.
       18 22 Wash. 419, 425, 61 P. 33 (1900) (quoting Century Dictionary).
       19 Karasek, 22 Wash, at 424-25.
       20 61 Wn. App. 177, 178, 810 P.2d 27 (1991).
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NO. 71691-3-1/12




may constitute a fence prohibited by a restrictive covenant.21 The court noted

that adopting a definition of "fence" excluding trees and restricted to structures

would frustrate the purpose of the covenant.22

       Courts in some other jurisdictions have found that a row of trees may

constitute a structure under that state's spite fence statute.23        In Wilson v.

Handley,24 the California Court of Appeal applied a definition of "structure" as

"'something arranged in a definite pattern of organization'" to conclude that

California's spite fence statute may prohibit a row of trees if it satisfies the other

elements of the statute. The Wilson court noted that it did not consider if a single

tree can be a structure.25 The Supreme Court of Rhode Island upheld a trial

court's finding that four trees that touched and spanned 60 feet across fell "well

within the statutory definition of a 'structure in the nature of a fence.'"26 And

Maine's Supreme Court also concluded that a row of trees could be a "'structure

in the nature of a fence'" prohibited by that state's spite fence statute.27 Because


       21 Lakes at Mercer Island, 61 Wn. App. at 182-83.
       22 Lakes at Mercer Island, 61 Wn. App. at 181.
       23 Wilson v. Handlev, 97 Cal. App. 4th 1301, 1306, 119 Cal. Rptr. 2d 263
(2002); Dowdell v. Bloomguist, 847 A.2d 827, 830 (R.I. 2004); Peters v. O'Learv.
2011 ME 106, H 14, 30 A.3d 825, 828-29. Contra Downe v. Rothman. 215
A.D.2d 716, 717, 627 N.Y.S. 424 (1995); Dalton v. Bua, 47 Conn. Supp. 645,
649, 822 A.2d 392 (2003).
       24 97 Cal. App. 4th 1301, 1306, 119 Cal. Rptr. 2d 263 (2002) (quoting
Webster's Collegiate Dictionary 1163 (10th ed. 2000)).
       25 Wilson. 97 Cal. App. 4th at 1306.
       26 Dowdell. 847 A.2d at 830.
       27 Peters, 2011 ME 106, U 14, 30 A.3d at 828-29.
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NO. 71691-3-1/13




we look to the artificial nature and construction of a structure and not to the

materials composing it to see if the statute applies, we also conclude that the

statute may cover artificially planted trees.

       We next look to see if the spite structure statute can prohibit a single tree.

We have not found any case applying a similar statute to a single tree. In the

absence of any authority directly on point, we look to elements of a statutory

violation.


       To establish a violation of RCW 7.40.030, Baillargeon v. Press28 requires

that


       the court must find (1) that the structure damages the adjoining
       landowner's enjoyment of his property in some significant degree;
       (2) that the structure is designed as the result of malice or
       spitefulness primarily or solely to injure and annoy the adjoining
       landowner; and (3) that the structure serves no really useful or
       reasonable purpose.

To satisfy constitutional limitations on the exercise of police power, the Karasek

court narrowly construed the statute to limit private use of land where these

elements exist.29 The structure "'must strike an ordinary beholder as manifestly

erected with a leading purpose to annoy the adjoining owner or occupant in his

use of his premises.'"30



       28 11 Wn. App. 59, 66, 521 P.2d 746 (1974).
       29 Karasek, 22 Wash, at 428-29.
       30 Karasek. 22 Wash, at 431 (quoting Gallagher v. Dodge. 48 Conn. 387
(1880)).
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NO. 71691-3-1/14




          As this case shows, in some circumstances one large tree can fulfill this

purpose as well as a row of trees.       A single tree can have a similar breadth,

height, and density. Strategically planting a single tree can accomplish the same

spiteful purpose as planting a row. Planting a tall tree can as effectively block a

view as a tall fence or an art sculpture (perhaps shaped like a tree) placed in the

same location.


          Thus, we conclude that a single tree artificially located and planted with

spiteful intent may, depending on the circumstances, constitute a structure within

the meaning of RCW 7.40.030.           We emphasize that we address only the

affirmative act of artificially locating a tree evaluated at the time of planting.

Viewing the evidence in the light most favorable to Haley, genuine issues of

material fact remain for the fact finder on all three elements of the Baillargeon

test.


          Fees and Costs Award


          Haley next claims the trial court erred when it did not award him attorney

fees and costs for his successful counterclaim.      Because costs and fee issues

may arise in future proceedings, we evaluate the merits of Haley's claim. This

court uses an error of law standard to review a party's entitlement to some

award.31


        31 Dave Johnson Ins.. Inc. v. Wright. 167 Wn. App. 758, 782, 275 P.3d 339
(2012).
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NO. 71691-3-1/15




       Haley argues that under RCW 4.84.010, which allows costs to a prevailing

party, and RCW 4.84.250, which allows attorney fees to a prevailing party, the

trial court should have awarded him costs and fees to be offset against any

award to MJD. Haley argues that because he filed a permissive and not a

compulsory counterclaim under CR 13(b), Marassi v. Lau32 entitles him to an

award of costs and fees offset against any amount awarded to MJD as costs and

fees. In Marassi. the plaintiff won on two claims, and the defendant, who did not

counterclaim, successfully defended against the remaining ten.33 Although the

plaintiff received an affirmative judgment, the court concluded that the

substantially prevailing party rule produced an unfair result.34          It used a

proportionality approach that awards the plaintiff fees for the claims it prevails on

and the defendant fees for the claims it prevails on with the awards offset.35

       Because Haley prevails on one very minor issue, the substantially

prevailing party rule did not produce an unfair result.     The proportionality rule

does not apply.

       Despite MJD's success, Haley also contends that MJD cannot be

considered the prevailing party.   Haley argues that because the $8,100.00 the

      32 71 Wn. App. 912, 917, 859 P.2d 605 (1993), abrogated on other
grounds by Wachovia SBA Lending. Inc. v. Kraft. 165 Wn.2d 481, 200 P.3d 683
(2009).
      33 Marassi. 71 Wn. App. at 916.
      34 Marassi, 71 Wn. App. at 916.
      35 Marassi, 71 Wn. App. at 917.
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NO. 71691-3-1/16




arbitrator awarded MJD was closer to the $971.50 and $1,200.00 settlement

offers Haley made than to the lowest award MJD said it would accept,

$20,593.80, Haley took the more reasonable position. Thus, MJD did not prevail

and should not have received an award of costs and fees.


        Haley cites no persuasive authority for his position, which is contrary to

RCW 4.84.270, which defines a defendant as the prevailing party if the plaintiff

recovers nothing or less than the defendant's settlement offer. CR 68 uses the

same standard.36 Here, MJD recovered more than Haley offered to settle the

case.   Haley also did not comply with the procedural requirements of chapter

4.84 RCW. The trial court properly denied his claims for fees and costs.

                                  CONCLUSION


        Because Haley demonstrated a genuine issue of material fact about the

reasonableness of MJD's driveway light installed in compliance with the Mercer

Island Code, we reverse the dismissal of his nuisance claim.       And because a

large planted tree, in some circumstances, may be a spite structure prohibited by

RCW 7.40.030, we reverse the dismissal of Haley's statutory claim. But the trial

court properly decided that Haley was not a prevailing party entitled to recover




        36 Tippie v. Delisle. 55 Wn. App. 417, 421, 777 P.2d 1080 (1989).
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NO. 71691-3-1/17




attorney fees and costs. We remand for further proceedings consistent with this

decision.




WE CONCUR:




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