          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



KALEVA and MART LIIKANE,                          No. 73641-8-1

                                                                                   C^3

                          Appellants,             DIVISION ONE                     em


                                                                                   o
                   v.
                                                                                       I



CITY OF SEATTLE, DEPARTMENT                       UNPUBLISHED
OF CONSTRUCTION AND LAND
USE, DEPARTMENT OF                                FILED: November 7, 2016
                                                                                       ro
TRANSPORTATION; DALY
PARTNERS, LLC; JIM DALY; and
PAVILION CONSTRUCTION,

                          Respondents.



          Cox, J. - Kaleva and Mart Liikane (the "Liikanes") appeal the superior

court's order granting summary judgment to Respondents Daly Partners, LLC

and Jim Daly (the "Daly Parties") and dismissing the Liikanes' claims with

prejudice. There were no material issues of fact because the Daly Parties acted

in accordance with a valid easement agreement. The Liikanes' claims of

trespass and various constitutional violations are without merit. Accordingly, we

affirm.


          Inhabit Dexter, LLC (Inhabit) owned property located at 1701 Dexter

Avenue North in Seattle (the "Property"). Kaleva and Kai Liikane (the "Liikane

owners") own two parcels adjacent to the Property (the "Liikane property"). The

Liikane owners acquired this property on November 8, 2005, when their father,

Mart Liikane, gave it to them via a quit claim deed.
No. 73641-8-1/2


       As part of some initial development efforts, Inhabit negotiated and

executed a Soil Nail Easement Agreement (the "Agreement") with the Liikane

owners. The Agreement is dated November 6, 2008, and recorded in King

County on December 15, 2008. The Agreement grants the Grantee (Inhabit) the

right to install a portion of a temporary shoring system beneath the Liikane

property. The shoring system is used to support a temporary retaining wall

located on the Property which in turn will support the hillside during construction

of a permanent structure on the Property.

       The Agreement allows the Grantee to place soil nails/tie backs onto the

Liikane property and sets out three restrictions governing the placement of the

soil nails as follows:

       Grant of Soil Nail Easement. Grantor hereby conveys and grants to
       Grantee a non-exclusive construction easement ("Soil Nail
       Easement") for the sole purpose of the construction, installation,
       use and abandonment in place, of a series of Soil Nails under and
       across the east one-hundred fifty (150) feet of Grantor's Property
       (the "Easement Area"), at depths of five (5) feet or more below
       the existing grade of Grantor's Property as shown on the drawing
       attached hereto as Exhibit C. The Soil Nails shall not extend more
       than forty-five (45) feet west beyond the eastern boundary of
       Grantor's Property as shown on the drawing attached hereto as
       Exhibit C. The Soil Nails will be placed into a soldier pile wall in
       the general configuration as shown on Exhibit D. Upon
       completion of in [sic] the construction and installation of the Soil
       Nails, detailed as-built drawings showing the locations, elevations,
       and dimensions of the Soil Nails shall be provided to Grantor.!1'

       The Agreement also specifies that before entry onto the Liikane property,

the Grantors (Liikane owners) must be paid $2,000, and the Grantee has to have

obtained insurance and provided the Grantor with evidence of the same. The



       1 Clerk's Papers at 188-89 (emphasis added).
                                          2
No. 73641-8-1/3


Agreement is binding on both parties' successors, transferees, and assigns, and

provides that the Grantee could assign the Agreement without the consent of the

Grantor.

       Attached to the Agreement are Exhibits C, D, and E. Exhibit C shows a

cross-section of the supporting wall on the west side of the Property to

demonstrate the acceptable depth and length of the soil nails under the terms of

the Agreement. Exhibit D shows the general configuration of how the soil nails

would be placed into a soldier pile wall. Exhibit E specifies the insurance

requirements and the address where proof of insurance is to be sent.

       On December 28, 2012, Daly Partners, LLC purchased the Property on

behalf of 1701 Dexter, LLC (1701 Dexter) from Inhabit, and 1701 Dexter

assumed Inhabit's rights under the Agreement. Daly Partners, LLC is an affiliate

of 1701 Dexter, and James Daly is the manager of 1701 Dexter and of Daly

Partners, LLC. 1701 Dexter began construction on the Property including

installation of a shoring system.

       On March 5, 2015, the Liikanes filed a complaint in superior court alleging

breach of contract, negligence and fraud, criminal trespass, unjust enrichment,

pain and suffering, and abuse of process. They also sought a declaration that

the Agreement was void and unenforceable. The complaint named the Daly

Parties as well as the City of Seattle and Pavilion Construction as defendants but
No. 73641-8-1/4


did not name 1701 Dexter. The Liikanes filed a motion for summary judgment on

April 21.2015.2

      The Daly Parties filed a cross motion for summary judgment on May 1,

2015, claiming the Agreement was valid, they were in compliance with its terms,

and the remainder of the Liikanes' claims were meritless. Attached to the motion

was a declaration of John Byrne. Byrne stated that he is a civil geotechnical

engineer, and he created the drawings for Inhabit that were attached as Exhibits

C and D to the Agreement. He stated that he designed the shoring system

("Shoring System") used on the Property in a manner that complies with all three

requirements of the Agreement. Specifically: (1) The soil nails have been placed

at least 15 feet below the grade of the Liikane property, which is three times

deeper than required by the Agreement; (2) none of the soil nails extend further

than 32 feet onto the Liikane property, which is 13 feet less than what the

Agreement allows; and (3) the soil nails are placed in a soldier pile wall in the

general configuration shown in Exhibit D to the Agreement.

       Byrne attached copies of the plans for the installed Shoring System, as

Exhibit 4 and stated that the cross-section shown on Exhibit C to the Agreement

and the cross-section in the attached plans are identical. He attached Exhibit 5

which showed the wall that was actually constructed on the Property and stated

that it is essentially identical to Exhibit D of the Agreement. He noted that there

are minor differences but they are immaterial and the soldier pile wall that was


     2 The Liikanes' motion for summary judgment is not part of the record.
See RAP 9.2; State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942 (2012)
(party claiming error on review has the burden of providing an adequate record to
establish the error).
No. 73641-8-1/5



constructed was in the same "general configuration" as that shown in Exhibit D.

Thus, the Shoring System installed is consistent with respect to the requirements

set forth in the Agreement.

      The Daly Parties also attached the declaration of James Daly. Daly stated

that 1701 Dexter's attorney sent the $2,000 payment and proof of insurance to

the Liikane owners' notice address via certified mail on January 7, 2015, but the

Liikane owners did not pick up the letter. He attached a copy of the delivery

attempt and the letter as Exhibit H.

      Although Mart Liikane (Mr. Liikane) was no longer an owner of the Liikane

property, he had previously met with Daly when he contacted 1701 Dexter

regarding the Property and the project. Mr. Liikane had told Daly that the

Agreement was invalid and insisted that 1701 Dexter needed to negotiate a new

agreement in order to install the shoring system. In his declaration, Daly stated

that he personally attempted to tender the notice letter, payment, and proof of

insurance to Mr. Liikane during an in-person meeting on February 9, 2015, but

Mr. Liikane refused to accept them. Daly attached a photo of Mr. Liikane taken

during the meeting and stated that the envelope in front of Mr. Liikane in the

photo contained the notice letter, payment and proof of insurance.

       The trial court determined that the Agreement is valid and binding on the

Liikane owners and that 1701 Dexter complied with the terms of the Agreement.

All of the Liikanes' claims were dismissed with prejudice.

       The Liikanes appeal.
No. 73641-8-1/6


       "We review summary judgment orders de novo ..., viewing all facts and

reasonable inferences in the light most favorable to the nonmoving party.

[Sjummary judgment is appropriate where there is 'no genuine issue as to any

material fact and ... the moving party is entitled to a judgment as a matter of

law.'"3 Although the evidence is viewed in the light most favorable to the

nonmoving party, if that party is the plaintiff and it fails to make a factual showing

sufficient to establish an element essential to its case, summary judgment is

warranted.4 "Conclusory statements and speculation will not preclude a grant of

summary judgment."5

    1701 DEXTER ACTED IN ACCORDANCE WITH A VALID EASEMENT

       The Liikanes claim that there were genuine issues of material fact as to

whether 1701 Dexter breached the Agreement. We disagree.

       In interpreting an easement, we look to the language contained therein.6

If the language is plain and unambiguous, extrinsic evidence will not be

considered.7 The Agreement is unambiguous as to what is required from 1701

Dexter as the Grantee. The affidavits of Byrne and Daly establish that 1701

Dexter complied with the requirements of the Agreement.

       The Liikanes do not argue that 1701 Dexter violated any of the three

restrictions contained in the Agreement. Instead, they claim that 1701 Dexter


       3 Eicon Const. Inc. v. E. Washington Univ.. 174 Wn.2d 157, 164, 273
P.3d 965 (2012) (quoting CR 56(c)).
       4 Young v. Key Pharmaceuticals. Inc., 112 Wn.2d 216, 225, 770 P.2d 182
(1989).
       5 Eicon Const.. Inc.. 174 Wn.2d at 169.
       6 Sunnvside Valley Irr. Dist. v. Dickie. 149 Wn.2d 873, 880, 73 P.3d 369
(2003).
       7 Id.
No. 73641-8-1/7



breached the Agreement by failing to follow the original building plans developed

for Inhabit and by changing the location, angles and dimensions of the soil nails.

We reject the Liikanes' contentions because Inhabits building plans are not

incorporated into the Agreement; the only "plans" that are part of the Agreement

are the drawings attached as Exhibits C and D to illustrate the depth and

extension of the soil nails and the general configuration of the nails once

installed. Byrne's declaration and the attachments thereto establish that the

Shoring System constructed complies with the requirements of the Agreement.

Because the soil nails were installed in accordance with the restrictions

contained in the Agreement, any other variances as to location, angles or

dimensions do not constitute a breach.

       The Liikanes also allege that 1701 Dexter breached the Agreement by

failing to tender the $2,000. However, they have failed to rebut Daly's statement

that payment was tendered but refused.8 Although the Liikanes contend that the

Agreement was breached because the City of Seattle issued unwarranted

building permits, we disagree because any such permits did not apply to the

Liikane property and they are not part of the Agreement.

       Finally, although the Liikanes allege that no changes could be made

without their written approval, that restriction only applies to changes in the

Agreement, not to any construction plans that the Grantee might have had.9


       8 Le Tastevin. Inc. v. Seattle First Natl Bank, 95 Wn. App. 224, 230, 974
P.2d 896 (1999) (refusal to accept payment is a breach of contract).
      9 Clerk's Papers at 190 ("This Soil Nail Easement shall not be modified,
amended or terminated without the prior written approval of the parties hereto.")
(emphasis added).
No. 73641-8-1/8




     THE LIIKANES' REMAINING CONTENTIONS ARE WITHOUT MERIT

      The Liikanes' contention that 1701 Dexter violated their rights under the

Fourth, Seventh, and Fourteenth Amendments to the United States Constitution

are without merit. First, neither 1701 Dexter nor the Daly Parties are government

actors so the Fourth and Fourteenth Amendments do not apply to their actions.10

In addition, the Liikanes have failed to allege any facts that would constitute a

Fourth or Fourteenth Amendment violation.11 They were never "seized" or

"searched" for purposes of the Fourth Amendment,12 and they have failed to

allege that they are members of a suspect class for purposes of an equal

protection challenge.13 Lastly, they have failed to allege a violation of their

Seventh Amendment right to a jury trial because "[t]he Seventh Amendment to

the United States Constitution does not apply [through the Fourteenth

Amendment] to civil cases in state courts."14




       10 U.S. Const, amend. XIV (No State "shall deny to any person within its
jurisdiction the equal protection of the laws."); see United States v. Jacobsen.
466 U.S. 109, 113-14, 104 S. Ct. 1652, 80 L Ed. 2d 85 (1984); Gray v. Univ. of
Colorado Hosp. Auth., 672 F.3d 909, 927 (10th Cir. 2012) ("Due Process Clause
of the Fourteenth Amendment by its plain language applies only to state action.").
       11 See State v. Johnson. 179 Wn.2d 534, 558, 315 P.3d 1090(2014)
(noting that an appellant raising constitutional issues must present considered
arguments to this court, and "[n]aked castings into the constitutional seas are not
sufficient to command judicial consideration and discussion") (quoting State v.
Blilie. 132 Wn.2d 484, 493 n.2, 939 P.2d 691 (1997)).
       12 Jacobsen. 466 U.S. at 113.
       13 See State v. Osman. 157 Wn.2d 474, 484, 139 P.3d 334 (2006).
       14 Bird v. Best Plumbing Group. LLC. 175 Wn.2d 756, 768, 287 P.3d 551
(2012).
                                          8
No. 73641-8-1/9


       Finally, because 1701 Dexter operated in accordance with the terms of the

Agreement, the Liikanes' trespass claim fails.15

                                 ATTORNEY FEES

       The Daly Parties seek an award of attorney fees incurred on appeal

claiming the Liikanes' appeal was frivolous. Because we disagree, we deny this

request.

       Rule 18.9(a) permits the court to require a party to pay the fees of another

party for defending a frivolous appeal. "[A]n appeal is frivolous if it raises no

debatable issues on which reasonable minds might differ and it is so totally

devoid of merit that no reasonable possibility of reversal exists."16 Because

doubts about whether the appeal is frivolous are resolved in favor of the

appellant,17 a fee award is not warranted in this case.

       We affirm the order granting summary judgment. We deny the request for

fees on appeal.
                                                          ^Kj J •

WE CONCUR:




       A-<g*<^/, ^                                      )/)^^^.^^\J x

       15 See Wallace v. Lewis County. 134 Wn. App. 1, 15, 137 P.3d 101
(2006): Fradkin v. Northshore Util. Dist, 96 Wn. App. 118, 123, 977 P.2d 1265
(1999).
       16 Protect the Peninsula's Future v. City of Port Angeles, 175 Wn. App.
201, 220, 304 P.3d 914 (2013)).
       17 Id.
