FILED JULY 21, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
BRETT E. BURRIS, an individual, ) No. 38344-0-III ) Appellant, ) ) v. ) ) CHARLES and DAWN PETTY, husband ) and wife; MARC J. MUELLER, an ) individual; and MUELLER ) UNPUBLISHED OPINION JACKHAMMER, INC., a Washington ) corporation, ) ) Defendants, ) ) JOHN and SANDRA WEISE, husband ) and wife; and C&R EXCAVATING & ) DEMO, INC., a Washington corporation, ) ) Respondents. )
PENNELL, J. — Brett Burris appeals an adverse summary judgment order
dismissing his trespass and related claims against John and Sandra Weise and the
Weises’ company, C&R Excavating & Demo, Inc. We reverse and remand for further
proceedings. No. 38344-0-III Burris v. Petty
FACTS
Brett Burris owns a residential rental property in Spokane, Washington. A
neighboring property is owned by Charles and Dawn Petty. In late 2018, the sewer line
shared by the Petty and Burris properties became blocked by tree roots, causing raw
sewage to back up into the Pettys’ home. The Pettys hired Mueller Jackhammer, Inc.,
owned by Marc Mueller, to repair the sewer line. In order to make the repairs, it was
necessary to excavate some of Mr. Burris’s property, including removal of a portion of
his driveway. Mr. Burris did not give the Pettys permission to enter onto his property to
perform any work.
The sewer line repair also necessitated machinery not possessed by Mueller
Jackhammer so Mr. Mueller reached out to his friend and former colleague, John Weise.
Mr. Weise allowed Mr. Mueller to borrow a Bobcat tractor owned by C&R Excavating
& Demo, Inc., Mr. Weise’s company. The project lasted a few days, during which time
some excavation occurred on Mr. Burris’s property and part of his driveway was
removed.
Mr. Burris subsequently initiated an action in Spokane County Superior Court
against Charles and Dawn Petty, Marc Mueller, Mueller Jackhammer, Inc., John and
Sandra Weise, and C&R Excavating & Demo, Inc. (C&R). In his complaint, Mr. Burris
2 No. 38344-0-III Burris v. Petty
alleged the following causes of action related to unauthorized work performed on his
property: (1) negligence, (2) intentional trespass, (3) negligent trespass, (4) statutory
trespass/waste, (5) trespass, and (6) nuisance.
The Weises and C&R moved for summary judgment, claiming Mr. Burris lacked
evidence showing either Mr. Weise or C&R was involved in any alleged trespass or
damage to the Burris property. Both Mr. Weise and Mr. Mueller submitted declarations
in support of the motion, stating Mr. Weise’s involvement in the project was limited to
lending Mr. Mueller a Bobcat tractor, delivering and picking up the Bobcat from the work
site, and instructing Mr. Mueller on how to use the Bobcat. Mr. Weise and Mr. Mueller
denied that Mr. Weise had ever entered the Burris property, or that he had played any role
in the work performed on the sewer project. According to Mr. Weise, he was out of town
during the time the actual work was performed. Mr. Mueller averred that, save Mr.
Weise’s lending of the Bobcat, no one else assisted him in any other way with the work
on the project.
Mr. Burris opposed the motion for summary judgment, challenging Mr. Weise’s
factual summary. Included in Mr. Burris’s responsive pleadings was a declaration from
Leroy Vernon, who worked as Mr. Burris’s property/maintenance supervisor. Mr. Vernon
was present at the time of the alleged trespass and property damage. According to Mr.
3 No. 38344-0-III Burris v. Petty
Vernon, circumstantial evidence tied Mr. Weise to the scene. A summary of Mr. Vernon’s
declaration follows:
• He saw two males trespassing and doing damage on the Burris property.
• While the two men were present and working on the Burris property, a white
pickup truck was parked nearby with a “‘C&R Excavating & Demo, Inc.’”
logo on the door. Clerk’s Papers at 53. No one was inside the C&R truck at
the time.
• Every time he went by the Burris property and saw men trespassing and doing
damage, the C&R truck was parked nearby.
• Mr. Vernon took photographs of the C&R Truck. The photos included images
of the men causing damage to the Burris property.
• At one point, Mr. Vernon relayed a message to the two men from Mr. Burris,
instructing them to cease and desist their activities. The men became rude and
confrontational. At that time, the C&R truck was parked near the Burris
property.
Mr. Burris also submitted excerpts from Mr. Weise’s sworn deposition testimony
in which Mr. Weise stated that no one else but him would have been driving the C&R
truck.
4 No. 38344-0-III Burris v. Petty
The trial court granted summary judgment to the Weises and C&R. The court
determined that nothing but speculation tied Mr. Weise to the allegations of trespass and
damage to the Burris property. The court later denied Mr. Burris’s motion for
reconsideration of the summary judgment decision.
Mr. Burris subsequently filed a motion to set aside the summary judgment order
based on newly discovered evidence. The evidence in question was a declaration from
Charles Petty. Mr. Petty’s declaration echoed Mr. Vernon’s declaration and stated that
two men were involved in working simultaneously on the Burris property. In his
declaration, Mr. Petty also said he had reviewed photographs of the excavation site,
presumably referring to the photos taken by Mr. Vernon. Mr. Petty declared that one of
the individuals depicted in the photographs appeared to be the person he had come to
know as John Weise.
The trial court denied Mr. Burris’s motion to set aside the summary judgment.
Mr. Burris timely appeals.
ANALYSIS
Our review of a summary judgment order is de novo. Keck v. Collins, 181 Wn.
App. 67, 78, 325 P.3d 306 (2014). All facts and reasonable inferences from the facts are
to be construed in the light most favorable to the nonmoving party. Id. at 79. When
5 No. 38344-0-III Burris v. Petty
reviewing a summary judgment, we consider only those facts presented to the trial court
prior to issuing its ruling. Clark v. Tacoma Hous. Auth., 11 Wn. App. 518, 519, 523 P.2d
1200 (1974).
Taken in the light most favorable to Mr. Burris, the facts before the trial court at
the time of summary judgment provided a nonspeculative basis for concluding Mr. Weise
and C&R were involved in the claimed trespass and damage to the Burris property.
According to Mr. Vernon, two different men were involved in working at the job site.
At the time Mr. Vernon observed the two men working, the C&R truck was present with
no one inside. According to Mr. Weise, he was the only person who drove the C&R truck.
While this evidence is circumstantial, it is sufficient to allow a fair-minded juror to
conclude Mr. Weise was one of the two men present at the work site and involved in the
excavation activities.
Mr. Weise appears to argue that summary judgment was warranted because
Mr. Vernon described the two men at the job site as having different heights, while Mr.
Mueller claimed he and Mr. Weise were roughly the same height. We disagree that this
information is sufficient to eliminate the possible inference that Mr. Weise was present at
Free access — add to your briefcase to read the full text and ask questions with AI
FILED JULY 21, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
BRETT E. BURRIS, an individual, ) No. 38344-0-III ) Appellant, ) ) v. ) ) CHARLES and DAWN PETTY, husband ) and wife; MARC J. MUELLER, an ) individual; and MUELLER ) UNPUBLISHED OPINION JACKHAMMER, INC., a Washington ) corporation, ) ) Defendants, ) ) JOHN and SANDRA WEISE, husband ) and wife; and C&R EXCAVATING & ) DEMO, INC., a Washington corporation, ) ) Respondents. )
PENNELL, J. — Brett Burris appeals an adverse summary judgment order
dismissing his trespass and related claims against John and Sandra Weise and the
Weises’ company, C&R Excavating & Demo, Inc. We reverse and remand for further
proceedings. No. 38344-0-III Burris v. Petty
FACTS
Brett Burris owns a residential rental property in Spokane, Washington. A
neighboring property is owned by Charles and Dawn Petty. In late 2018, the sewer line
shared by the Petty and Burris properties became blocked by tree roots, causing raw
sewage to back up into the Pettys’ home. The Pettys hired Mueller Jackhammer, Inc.,
owned by Marc Mueller, to repair the sewer line. In order to make the repairs, it was
necessary to excavate some of Mr. Burris’s property, including removal of a portion of
his driveway. Mr. Burris did not give the Pettys permission to enter onto his property to
perform any work.
The sewer line repair also necessitated machinery not possessed by Mueller
Jackhammer so Mr. Mueller reached out to his friend and former colleague, John Weise.
Mr. Weise allowed Mr. Mueller to borrow a Bobcat tractor owned by C&R Excavating
& Demo, Inc., Mr. Weise’s company. The project lasted a few days, during which time
some excavation occurred on Mr. Burris’s property and part of his driveway was
removed.
Mr. Burris subsequently initiated an action in Spokane County Superior Court
against Charles and Dawn Petty, Marc Mueller, Mueller Jackhammer, Inc., John and
Sandra Weise, and C&R Excavating & Demo, Inc. (C&R). In his complaint, Mr. Burris
2 No. 38344-0-III Burris v. Petty
alleged the following causes of action related to unauthorized work performed on his
property: (1) negligence, (2) intentional trespass, (3) negligent trespass, (4) statutory
trespass/waste, (5) trespass, and (6) nuisance.
The Weises and C&R moved for summary judgment, claiming Mr. Burris lacked
evidence showing either Mr. Weise or C&R was involved in any alleged trespass or
damage to the Burris property. Both Mr. Weise and Mr. Mueller submitted declarations
in support of the motion, stating Mr. Weise’s involvement in the project was limited to
lending Mr. Mueller a Bobcat tractor, delivering and picking up the Bobcat from the work
site, and instructing Mr. Mueller on how to use the Bobcat. Mr. Weise and Mr. Mueller
denied that Mr. Weise had ever entered the Burris property, or that he had played any role
in the work performed on the sewer project. According to Mr. Weise, he was out of town
during the time the actual work was performed. Mr. Mueller averred that, save Mr.
Weise’s lending of the Bobcat, no one else assisted him in any other way with the work
on the project.
Mr. Burris opposed the motion for summary judgment, challenging Mr. Weise’s
factual summary. Included in Mr. Burris’s responsive pleadings was a declaration from
Leroy Vernon, who worked as Mr. Burris’s property/maintenance supervisor. Mr. Vernon
was present at the time of the alleged trespass and property damage. According to Mr.
3 No. 38344-0-III Burris v. Petty
Vernon, circumstantial evidence tied Mr. Weise to the scene. A summary of Mr. Vernon’s
declaration follows:
• He saw two males trespassing and doing damage on the Burris property.
• While the two men were present and working on the Burris property, a white
pickup truck was parked nearby with a “‘C&R Excavating & Demo, Inc.’”
logo on the door. Clerk’s Papers at 53. No one was inside the C&R truck at
the time.
• Every time he went by the Burris property and saw men trespassing and doing
damage, the C&R truck was parked nearby.
• Mr. Vernon took photographs of the C&R Truck. The photos included images
of the men causing damage to the Burris property.
• At one point, Mr. Vernon relayed a message to the two men from Mr. Burris,
instructing them to cease and desist their activities. The men became rude and
confrontational. At that time, the C&R truck was parked near the Burris
property.
Mr. Burris also submitted excerpts from Mr. Weise’s sworn deposition testimony
in which Mr. Weise stated that no one else but him would have been driving the C&R
truck.
4 No. 38344-0-III Burris v. Petty
The trial court granted summary judgment to the Weises and C&R. The court
determined that nothing but speculation tied Mr. Weise to the allegations of trespass and
damage to the Burris property. The court later denied Mr. Burris’s motion for
reconsideration of the summary judgment decision.
Mr. Burris subsequently filed a motion to set aside the summary judgment order
based on newly discovered evidence. The evidence in question was a declaration from
Charles Petty. Mr. Petty’s declaration echoed Mr. Vernon’s declaration and stated that
two men were involved in working simultaneously on the Burris property. In his
declaration, Mr. Petty also said he had reviewed photographs of the excavation site,
presumably referring to the photos taken by Mr. Vernon. Mr. Petty declared that one of
the individuals depicted in the photographs appeared to be the person he had come to
know as John Weise.
The trial court denied Mr. Burris’s motion to set aside the summary judgment.
Mr. Burris timely appeals.
ANALYSIS
Our review of a summary judgment order is de novo. Keck v. Collins, 181 Wn.
App. 67, 78, 325 P.3d 306 (2014). All facts and reasonable inferences from the facts are
to be construed in the light most favorable to the nonmoving party. Id. at 79. When
5 No. 38344-0-III Burris v. Petty
reviewing a summary judgment, we consider only those facts presented to the trial court
prior to issuing its ruling. Clark v. Tacoma Hous. Auth., 11 Wn. App. 518, 519, 523 P.2d
1200 (1974).
Taken in the light most favorable to Mr. Burris, the facts before the trial court at
the time of summary judgment provided a nonspeculative basis for concluding Mr. Weise
and C&R were involved in the claimed trespass and damage to the Burris property.
According to Mr. Vernon, two different men were involved in working at the job site.
At the time Mr. Vernon observed the two men working, the C&R truck was present with
no one inside. According to Mr. Weise, he was the only person who drove the C&R truck.
While this evidence is circumstantial, it is sufficient to allow a fair-minded juror to
conclude Mr. Weise was one of the two men present at the work site and involved in the
excavation activities.
Mr. Weise appears to argue that summary judgment was warranted because
Mr. Vernon described the two men at the job site as having different heights, while Mr.
Mueller claimed he and Mr. Weise were roughly the same height. We disagree that this
information is sufficient to eliminate the possible inference that Mr. Weise was present at
the property and involved in the excavation. A fact finder could determine Mr. Vernon’s
perception of the two men’s heights was inaccurate, and nevertheless conclude Mr. Weise
6 No. 38344-0-III Burris v. Petty
was the second man working at the site. The possibility that Mr. Vernon could be
mistaken as to any difference in height between Mr. Weise and Mr. Mueller does not
mean Mr. Burris loses his right to ultimately present his case to a trier of fact.
We note the evidence before the trial court at the time of summary judgment
did not include Mr. Petty’s declaration and we therefore do not consider Mr. Petty’s
declaration in our assessment of summary judgment. In any event, Mr. Petty’s declaration
does not appear to add any new admissible evidence to the summary judgment analysis.
Mr. Petty’s claim that there were two men working at the job site is cumulative of the
information supplied by Mr. Vernon. In addition, it is not apparent why Mr. Petty’s
opinion regarding the identity of the man in Mr. Vernon’s photographs would have been
admissible. Mr. Petty appears to have had limited familiarity with Mr. Weise. Under
ER 701, a lay witness’s identification of a person from a photograph is only admissible
“if there is some basis for concluding that the witness is more likely to correctly identify
the [person] from the photograph than is the jury.” State v. Hardy, 76 Wn. App. 188, 190,
884 P.2d 8 (1994), aff’d sub nom. State v. Clark, 129 Wn.2d 211, 916 P.2d 384 (1996).
APPELLATE ATTORNEY FEES AND COSTS
Both parties request attorney fees and costs on appeal. The request for fees and
costs by the Weises and C&R fails as they have not prevailed on appeal. Mr. Burris has
7 No. 38344-0-III Burris v. Petty
asked for fees, but he has not provided a legal basis to award fees, except for a cursory
reference to RAP 18.1. This is not sufficient. Wilson Court Ltd. P’ship v. Tony Maroni’s,
Inc., 134 Wn.2d 692, 710 n.4, 952 P.2d 590 (1998). We therefore decline to award
attorney fees to either party. As the prevailing party, Mr. Burris is entitled to costs under
RAP 14.2, subject to his compliance with RAP 14.4.
CONCLUSION
The order granting summary judgment to the Weises and C&R Excavation &
Demo, Inc. is reversed. This matter is remanded for further proceedings.
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.
_________________________________ Pennell, J.
WE CONCUR:
____________________________ Siddoway, C.J. Lawrence-Berrey, J.