       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MAEVE CONNOLLY,                                 )        No. 80075-2-I
                                                )
                           Appellant,           )        DIVISION ONE
                                                )
                  v.                            )
                                                )
BONNIE PIEST, and JOHN DOE                      )        UNPUBLISHED OPINION
PIEST, and the marital community                )
comprised thereof,                              )
                                                )
                          Respondents.          )

       BOWMAN, J. — Maeve Connelly brought nuisance and trespass actions

against her neighbor Bonnie Piest and her spouse (collectively Piest) on the

grounds that Piest’s cedar tree branches extend over her property, shedding

debris and posing a danger to her home. The trial court granted Piest’s motion

for summary judgment. Because Connolly has made a showing sufficient to

establish the elements of her nuisance claim and genuine issues of material fact

remain, we reverse and remand for further proceedings.

                                            FACTS

       A mature 81-foot cedar tree grows on Piest’s property. The tree has grown

on Piest’s property since at least 1999 when she purchased her home. Piest’s

neighbor Connolly has lived on her property for over 40 years, during which the

cedar tree grew from “a few feet tall” to its present height.




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No. 80075-2-I/2

       Though the tree grows wholly on Piest’s property, one-third of the canopy

hangs over Connolly’s property. Some of the branches from Piest’s tree

overhang Connolly’s house and deck. Connolly expressed concerns that the size

and length of the limbs pose a growing threat to her home and that they

“profusely” shed needles and cones onto Connolly’s home and yard, clogging her

swimming pool filters and roof gutters and killing her grass.

       In August 2016, Connolly’s lawyer sent a demand letter to Piest. The letter

complained that the needles from the tree forced Connolly to fill in her swimming

pool because it “became unusable.” Connolly threatened to take legal action if

Piest did not allow Connolly’s arborist to “cut back the branches currently

encroaching on her property.”

       In August 2017, Piest responded that selective pruning of some of the

overhanging branches would reduce any “low risk” the tree poses and improve

the health of the tree. A certified arborist estimated that “the tree adds $46,100 to

the [Piest] property.” Piest acknowledged Connolly’s “nearly absolute” right to cut

any encroaching branches but hoped she would not exercise that option as the

tree added value to both of their properties.

       In September 2017, Connolly filed nuisance and trespass actions against

Piest. Connolly complained that Piest’s tree shows growth, “posing an increasing

danger” to her home. She was concerned the tree’s limbs would “reach [her]

home should failure occur” during a windstorm. And she alleged that the tree’s

needles caused her to spend “no less than six thousand dollars” remediating

damage to her property. Connelly requested that Piest pay for the tree’s




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complete removal and that the trial court award damages “in an amount to be

proven at trial.”

        Connolly and Piest retained experts to assess the health of the tree and

any risk the limbs may pose to Connolly’s home. The experts disagreed on the

likelihood that limbs could fail and cause damage to Connolly’s property. Piest’s

expert Kurt Fickeisen stated that the tree presented only a “low overall risk” to

both properties. Connolly’s expert Brian Gilles disagreed and testified that the

tree presented a “moderate” risk. Gilles further recommended that in order to

avoid possible branch failure, the cedar branches would need to be cut at the

“branch collar” where the branch “leaves the trunk” (located on Piest’s property),

not in the middle of the branches at the property line.

        Piest filed a motion for summary judgment, asking the court to dismiss the

nuisance claim. The trial court granted the summary judgment motion and struck

the trial date.1 The court awarded Piest her attorney fees and costs. Connolly

appeals.

                                         ANALYSIS

        Connolly argues that the trial court erred in dismissing her lawsuit on

summary judgment. We agree.

        This court reviews an order granting summary judgment de novo. Mohr v.

Grantham, 172 Wn.2d 844, 859, 262 P.3d 490 (2011). Summary judgment is

granted if there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c); Cotton v. Kronenberg, 111 Wn.


        1 The trespass claim did not appear in either Piest’s summary judgment motion or the
court’s order granting summary judgment.


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App. 258, 264, 44 P.3d 878 (2002). Summary Judgment is also proper if the

nonmoving party “ ‘fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.’ ” Miller v. Likins, 109 Wn. App. 140, 145, 34 P.3d 835

(2001)2 (quoting Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182

(1989)). When reviewing a summary judgment order, this court engages in the

same inquiry as the trial court and construes the facts in a light most favorable to

the nonmoving party. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774,

784, 30 P.3d 1261 (2001).

Nuisance Claim

       Connolly argues that the court erred in granting summary judgment

dismissal of her nuisance claim because the limbs from Piest’s tree encroach on

her property and interfere with the use and enjoyment of her property by shedding

large amounts of debris on her house and yard. She also argues that the

branches “potentially threaten” her safety. Piest maintains that Connolly has no

actionable nuisance claim.

       RCW 7.48.010 defines an “actionable nuisance” as “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.” “A nuisance is an unreasonable interference with another's use

and enjoyment of property.” Mustoe v. Ma, 193 Wn. App. 161, 168, 371 P.3d 544

(2016); see also MJD Props., LLC v. Haley, 189 Wn. App. 963, 970, 358 P.3d



       2   Internal quotation marks omitted.


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476 (2015) (holding that “[a]n activity constitutes a nuisance when it interferes

unreasonably with a neighbor’s use and enjoyment of his or her property”). “To

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

convenience unique to the case.” Boyle v. Leech, 7 Wn. App. 2d 535, 539, 436

P.3d 393 (2019) (citing Mustoe, 193 Wn. App. at 169).

       Piest argues that Connolly does not have an actionable nuisance claim

because her tree is healthy and “[t]he natural dropping of leaves and other

ordinary debris created by the natural processes and life cycles of trees will not

support a nuisance claim.” Piest cites Boyle in support of her claim. She also

argues that even if the branches from her tree are a nuisance, Connolly’s sole

remedy is to cut them back to the property boundary line.

       Boyle involved a dispute over debris from a tree that grew entirely on the

owner’s property “without branches overhanging onto the [neighbor]’s yard.”

Boyle, 7 Wn. App. 2d at 539. We concluded that the property owner acted

reasonably in the maintenance of the tree and that errant debris from a tree

wholly on another’s property does not constitute a nuisance. Boyle, 7 Wn. App.

2d at 542. Here, the limbs from the tree on Piest’s property extend across her

boundary line and over Connolly’s yard. “[T]he branches of trees extending over

adjoining land constitute a nuisance.” Gostina v. Ryland, 116 Wash. 228, 232,

199 P. 298 (1921). Piest’s reliance on Boyle is misplaced.

       However, Connolly must also show damages to support an actionable

nuisance claim. “ ‘The overhanging branches of a tree, not poisonous or noxious

in nature, are not a nuisance per se, in such a sense as to sustain an action for

damages.’ ” Gostina, 116 Wash. at 233 (quoting Countryman v. Lighthill, 31 N.Y.


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Sup. Ct. (24 Hun.) 405 (1881)). Here, Connolly showed evidence that the

needles and debris from Piest’s overhanging tree branches “shed profusely” in

her yard. She claims that the debris interferes with her use and enjoyment of her

property. This is precisely the damage found to be sufficient to support an action

of nuisance in Gostina. See Gostina, 116 Wash. at 234 (concluding that needles

falling from overhanging branches causing additional maintenance are “actual,

sensible damages”). “[A]lthough insignificant, ‘the insignificance of the injury

goes to the extent of recovery, and not to the right of action.’ ” Gostina, 116

Wash. at 234 (quoting THOMAS M. COOLEY, A TREATISE ON THE LAW OF TORTS 567

(1880)). Piest also ignores that Connolly’s nuisance claim rests on more than the

shedding of debris in her yard. Connolly’s tree expert testified that the size and

location of the tree’s branches pose “an increasing danger” to Connolly’s home.

Connolly has made a showing sufficient to establish the existence of damages.

       Piest argues that even if the limbs of her tree are a nuisance to Connolly,

Connolly’s sole remedy is to exercise “self-help” and cut the branches at the

property line. Piest is correct that an adjoining landowner may engage in self-

help and trim the branches of a neighbor’s tree that encroach onto her property.

Gostina 116 Wash. at 233. However, self-help is not the sole remedy. “ ‘[T]he

watching to see when trimming of noxious branches would be necessary and the

operation of trimming are burdens which ought not to be cast upon a neighbor by

the acts of an adjoining owner.’ ” Gostina 116 Wash. at 234 (quoting Crowhurst

v. Amersham Burial Bd. (1878) 4 Exch. Div. 11, reprinted in 18 AM. L. REG. (N.S.)

348, 350). The person over whose land such branches extend “ ‘may cut them

off, or have [their] action for damages, if any have been sustained therefrom.’ ”


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Gostina 116 Wash. at 232 (quoting 1 H.G. WOOD, A PRACTICAL TREATISE ON THE

LAW OF NUISANCES § 108 (3d Ed. 1893)).

       Although Connolly has made a showing sufficient to establish the

existence of the essential elements of her nuisance claim, genuine issues of

material fact remain. Connolly’s tree expert Gilles asserts that the branches

overhanging Connolly’s house and deck pose a moderate risk of limb failure. He

also asserts that trunk failure is possible and the risk of failure will increase over

time. Piest’s expert Fickeisen opines that the branches present a “low overall

risk” to both properties and that trunk failure is improbable. Fickeisen concludes

that selectively pruning branches can reasonably mitigate any risk to Connolly’s

home, but Gilles maintains that no amount of pruning will abate the nuisance

long-term. Gilles also asserts that pruning the branches at the property line would

cause significant long-term damage to the tree. These issues of material fact

preclude summary judgment.

Trespass Claim

       Connolly argues that the trial court erred in dismissing her trespass claim

because Piest’s motion for summary judgment failed to address that cause of

action. Piest acknowledges that she did not seek summary judgment with regard

to the trespass claim in her motion. But she maintains that dismissal was

appropriate because “[n]uisance and trespass claims are similar” in that “[b]oth

require some showing of damages.”

       “It is the responsibility of the moving party to raise in its summary judgment

motion all of the issues on which it believes it is entitled to summary judgment.”

White v. Kent Med. Ctr., Inc., P.S., 61 Wn. App. 163, 168, 810 P.2d 4 (1991). It is


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error for a trial court to grant summary judgment based on an issue not raised in a

party’s opening papers. White, 61 Wn. App at 169.

        In her complaint, Connolly alleged both nuisance and trespass causes of

action. Piest filed a motion for summary judgment challenging only Connolly’s

nuisance claim. At oral argument, the singular focus of the parties was on the

nuisance claim. The trial court’s order provides only that “[t]he Defendant’s

Motion for Summary Judgment is hereby granted.” The record contains no order

dismissing the trespass claim. Yet the court struck the trial date and proceeded

to award attorney fees and costs to Piest as if it had dismissed the entire lawsuit.

The trial court erred in dismissing Connolly’s trespass claim.3

        We reverse the trial court’s order granting summary judgment in favor of

Piest and remand for further proceedings.




WE CONCUR:




         3 Connolly also assigns error to the trial court’s award of attorney fees. Because we

reverse and remand for further proceedings, we do not reach that issue. Additionally, Piest
requests attorney fees on appeal. Because she is not the prevailing party, we decline to award
Piest fees on appeal.


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