                                                              FILED
                                                      COON-    A?PEALS.DIY I
                                                       5TAIE OF WAStilliGICIN

                                                      2019JAN 28 AM10: 16

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THERESA BOYLE and KENT
 BOYLE, husband and wife,                   No. 79069-2-1

                          Appellants,       DIVISION ONE

               V.                           UNPUBLISHED OPINION

 JOHN W. LEECH and BRENDA G.
 LEECH, husband and wife,

                         Respondents.       FILED: January 28, 2019


       CHUN,J. — The Boyles brought a nuisance action against their neighbors,

the Leeches, for staining caused by debris from a tree on the latter's property.

The trial court granted the Leeches' motion for summary judgment, ruling as a

matter of law that the Boyles did not establish actionable nuisance. We affirm.

                                 BACKGROUND

       John Leech lived at his current residence as a child in the 1950s. He

moved back to the property in 1995 and currently lives there with his wife. A

coastal redwood tree has grown on the property since Leech first lived there, and

he believes that someone planted the tree in the 1930s. Leech estimates the

trunk of the tree sits approximately 70 feet from the boundary line with the

Boyles' neighboring property. He also estimates the branches stop

approximately 50 feet before the boundary line. Leech stated he has received no

prior complaints about the tree from the neighbors.
 No. 79069-2-1/2


       The Boyles moved into their home in July 2013. Wind blows debris from

the Leeches' tree onto the Boyles' property. Sometimes, this debris causes

staining. The staining does not remove easily, and requires power washing or

strong cleaning products.

       The Boyles hired Brian Allen, a certified arborist, to inspect the tree on the

Leeches' property. Allen determined the sap and cones from the tree contains

tannic acid, which stains the Boyles' property. In his report, Allen stated the tree

"is dying slowly," causing excessive sap and cone production. Despite this

diagnosis, Allen noted the "[t]ree is not currently considered high risk." On a 1 to

10 health scale (1 being the highest risk, with the potential for critical failure at

any moment), Allen ranked the health of the tree as close to a 7. As a

recommendation, the report provides, "Due to client's motivations, and the

potential for continued and worsening damage to surrounding property, removal

is recommended."

       Because of the staining, the Boyles filed a nuisance action against the

Leeches on September 28, 2016. The Boyles requested $5,000 in damages and

asked the court to order the Leeches to abate the nuisance.

       On June 26, 2017, the Leeches moved for summary judgment, arguing

the Boyles failed to establish a prima facie case of nuisance.

      The trial court granted the Leeches' motion for summary judgment on

August 25, 2017. The Boyles filed a motion for reconsideration, which the court

denied.

      The Boyles appeal.


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                                    ANALYSIS
   A. Nuisance

       The Boyles assert the trial court erred by ruling that debris from a tree

wholly on a neighboring party's property cannot constitute a nuisance as a matter

of law. The Leeches argue the Boyles did not establish a nuisance caused by

any unlawful act or omission. Additionally, the Leeches contend the tree cannot

constitute a nuisance because it exists entirely on their property. We conclude

the trial court did not err by granting summary judgment in favor of the Leeches.

       Appellate courts review de novo a trial court order granting summary

judgment. MJD Props. LLC v. Haley, 189 Wn. App. 963, 968, 358 P.3d 476

(2015). Thus, on review, an appellate court engages in the same inquiry as the

trial court and considers the facts in the light most favorable to the nonmoving

party. Lewis v. Krussel, 101 Wn. App. 178, 182, 2 P.3d 486 (2000). A trial court

properly grants summary judgment where the case presents no genuine issues

of material fact and a party is entitled to judgment as a matter of law. Lewis, 101

Wn. App. at 182. "A material fact is one that affects the outcome of the litigation."

Lewis, 101 Wn. App. at 182.

      RCW 7.48.010 defines "actionable nuisance" as follows:
             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.




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In Washington,"an unreasonable interference with another's use and enjoyment

of property" constitutes a nuisance. Wallace v. Lewis County, 134 Wn. App. 1,

18, 137 P.3d 101 (2006)(citing Kitsap County v. Allstate Ins. Co., 136 Wn.2d

567, 592, 964 P.2d 1173 (1998)); see also MJD Props. LLC, 189 Wn. App. at

970 ("An activity constitutes a nuisance when it interferes unreasonably with a

neighbor's use and enjoyment of his or her property.").

       In nuisance cases, the trial court mainly considers whether a party

reasonably uses his or her property. MJD Props. LLC, 189 Wn. App. at 970;

Bradley v. Am. Smelting & Ref. Co., 104 Wn.2d 677, 689, 709 P.2d 782(1985)

(providing that "unreasonableness of the interference is necessary for liability").

To determine whether a use is reasonable, courts balance the rights, interests,

and convenience unique to the case. Mustoe v. Ma, 193 Wn. App. 161, 169, 371

P.3d 544 (2016). Trial courts consider all the surrounding facts and

circumstances. Jones v. Rumford, 64 Wn.2d 559, 563, 392 P.2d 808 (1964);

Mustoe, 193 Wn. App. at 169 ("In a nuisance case, the fundamental inquiry

concerns whether the use of certain land can be considered reasonable in

relation to all the facts and circumstances."). "While reasonableness is typically a

question of fact, a court may resolve such questions as a matter of law where

reasonable minds could come to only one conclusion." Lakey v. Puget Sound

Energy, Inc., 176 Wn.2d 909, 924, 296 P.3d 860 (2013).




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No. 79069-2-1/5


        Here, the tree grows entirely on the Leeches' property, without branches

overhanging onto the Boyles' yard.' Leech believes the tree has been on the

property for 80 years. Aside from the Boyles, no neighbor has ever complained

to Leech about the tree.

        The Boyles describe the tree as "a dying tree shedding toxic debris."

Though their expert opined that the tree is dying slowly, he determined the tree

remained relatively healthy. The expert's report describes the tree's debris as

"excessive" rather than toxic. The report further explains there is only a

"potential" for continued damage and recommends removal "due to client's

motivations."

        The Leeches did not act unreasonably with regard to the tree, especially

given the tree is located entirely on their property. As such, the Boyles cannot

establish nuisance as a matter of law. The Leeches are not required to remove

the tree to prevent staining from occurring on the Boyles' property. Cf. Gostina v.

Ryland, 116 Wn. 228, 232, 199 P. 298(1921)("the person over whose land

[branches]extend may cut them off, or have his action for damages.. . but he ,

may not cut down the tree").

        No published case in Washington (or elsewhere, apparently) addresses a

nuisance action regarding a tree situated wholly on another's property. However,

the Washington Supreme Court's opinion in Gostina, provides insight. In

Gostina, the Supreme Court determined that overhanging tree branches or



        1 Additionally, nothing in the record suggests the tree's roots encroach onto the Boyles'
property.


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No. 79069-2-1/6


encroaching roots onto a neighboring property constitute nuisances. Gostina,

116 Wn. at 231. Furthermore, a property owner who permits his or her tree to

extend onto a neighboring property commits "an unequivocal act of negligence."

Gostina, 116 Wn. at 232. Accordingly, the case holds a party may cut back to

the property line any tree branches or roots that intrude onto his or her property.

Gostina, 116 Wn. at 233. In dicta, the Court noted, "[t]he remainder of the trees

will doubtless shed their leaves and needles upon the [plaintiff's] premises; but

this they must endure positively without remedy." Gostina, 116 Wn. at 235.

       Other courts have reached similar conclusions. In Cannon v. Neuberger,

1 Utah 2d 396, 268 P.2d 425 (1954), a plaintiff sued a neighbor to remove the

trees on their property that encroached onto his. The plaintiff appealed the trial

court's order, which denied his request for an order requiring the defendants to

either remove the trees at issue or control their growth to prevent them from

overspreading or dropping leaves, twigs, and branches. Cannon, 1 Utah 2d at

397. In affirming the trial court's order, the Utah Supreme Court noted as follows:

      It is common knowledge that winds break branches from trees, and
      that trees in this climate, hard wood or otherwise, shed twigs,
      branches, leaves or needles. To hold trees to be nuisances subject
      to abatement in equity, or subject to actions at law for damages,
      merely because leaves or twigs or even branches in the ordinary
      course of affairs may be blown from them onto neighbors' lots, would
      be to condemn to abolition all shade trees in communities sufficiently
      settled to have perils of such experiences.
Cannon, 1 Utah 2d at 399.

      The Intermediate Court of Appeals of Hawaii discussed the issue in

Whitesell v. Houlton, 2 Haw. App. 365, 632 P.2d 1077 (1981). Although this



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No. 79069-2-1/7


case also addressed tree branches that overhung a neighbor's property, the

court held "that overhanging branches or protruding roots constitute a nuisance

only when they actually cause, or there is imminent danger of them causing,

sensible harm to property other than plant life, in ways other than by casting

shade or dropping leaves, flowers, or fruit." Whitesell, 2 Haw. App. at 367.

Certainly, if natural debris from an overhanging tree should not constitute a

nuisance, neither should such debris from a tree that does not encroach onto

neighboring property.

       Finally, in Ponte v. DaSilva, 388 Mass. 1008, 446 N.E.2d 77(1983), the

plaintiff suffered injury when she slipped on branches that had fallen onto her

property from a neighbor's overhanging tree. The Supreme Judicial Court of

Massachusetts held "[t]he failure of a landowner to prevent the blowing or

dropping of leaves, branches, and sap from a healthy tree onto a neighbor's

property is not unreasonable and cannot be the basis of a finding of negligence

or private nuisance." Ponte, 388 Mass. at 1010. Following Ponte, the Kentucky

Court of Appeals also concluded that Iiimposing liability upon a landowner for

damage resulting from the natural dropping of leaves and other ordinary debris

would result in innumerable lawsuits and impose liability upon a landowner for

the natural processes and cycles of trees." Schwalbach v. Forest Lawn Memorial

Park, 687 S.W.2d 551, 552(1985).

      Wind blowing natural debris from the Leeches' tree causes staining on the

Boyles' property. We decide that this—debris from a tree wholly on another's

property—does not constitute a nuisance. Cases from other courts accord with


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 No. 79069-2-1/8


this conclusion. Therefore, the trial court did not err in granting summary

judgment in favor of the Leeches.2

    B. Attorney Fees on Appeal

        In their request for attorney fees, the Leeches cite RAP 18.1 and request

"any and all statutory costs and fees that they may be entitled to as the prevailing

party." However, RAP 18.1 "requires more than a bald request for attorney fees

on appeal. Argument and citation to authority are required under the rule to

advise the court of the appropriate grounds for an award of attorney fees and

costs." Stiles v. Kearney, 168 Wn. App. 250, 267, 277, P.3d 9 (2012). Because

the Leeches fail to provide any grounds for an attorney fee award on appeal, we

deny their request.

        Affirmed.



WE CONCUR:




         2 Because we determine the trial court did not err in ordering summary judgment, we
similarly decide the court properly denied the Boyles' motion for reconsideration.


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