IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JEFF and GWEN RUSSELL, husband No. 86266-9-I and wife; JOHN and BARB CHILDS, husband and wife; SUE ELLEN DIVISION ONE BLACKNALL, an individual; CHERYL REESE, an individual; WALLY and MARTHA WEBSTER, husband and wife; BRIAN and AMY FARIS, husband and UNPUBLISHED OPINION wife; LOREE LEE, an individual; and MICHAEL and GINA BALL, husband and wife,
Appellants/Cross- Respondents,
v.
THE CITY OF LYNNWOOD, an unchartered code city and a municipal corporation of Washington State, by and through its city council,
Respondent/Cross- Appellant,
SNOHOMISH COUNTY, a political subdivision of Washington State; and RONALD NEWMAN,
Defendants.
SMITH, J. — In 2020, Ronald Newman applied for a short plat in
Snohomish County. Newman also owned a 1-foot strip of land—the “Nuisance
Strip”—near his property. Appellants (collectively referred to as Russell) owned
neighboring properties and objected to Newman’s application. They appealed to No. 86266-9-I/2
the City of Lynnwood’s hearing examiner, who upheld the approval of the
application, subject to conveyance of the Nuisance Strip to the City of Lynnwood.
Russell then filed a Land Use Petition Act1 (LUPA) action in superior court, which
was dismissed.
In 2022, Russell sued Snohomish County and the City for declaratory
relief and damages regarding the Nuisance Strip. After a bench trial, the court
dismissed the action and later denied reconsideration. In a post-trial motion for
sanctions based on a discovery violation, the court awarded fees to Russell.
Russell appealed the dismissal of the action contending (1) the trial court’s
findings of fact were not supported by substantial evidence, (2) the trial court’s
conclusions of law were not supported by the findings of fact, (3) the court erred
when it did not consider extrinsic evidence, (4) the trial court erred because it did
not define the purpose of the nuisance strip, (5) Russell was required to meet a
higher burden of proof than necessary, (6) the trial court erred when it
determined the City’s discovery violation was not willful, and (7) the trial court
erred when it dismissed the claim. The City also appealed and claimed the trial
court erred when it concluded Russell’s claim was not time barred, and the court
abused its discretion when it awarded fees to Russell based on the City’s
discovery violation.
We affirm on all issues, except we conclude the trial court abused its
discretion when it awarded attorney fees to Russell because it failed to provide
findings concerning the basis of its determination for the award. Therefore, we
1 Chapter 36.70C RCW.
2 No. 86266-9-I/3
remand with instructions for the trial court to provide findings in support of the
award of attorney fees and to correct a scrivener’s error in the findings of fact.
FACTS
Background
In August 1978, H and H Homes, Inc (H&H) recorded a plat (“H&H Plat” or
“Plat”)2 in the City of Lynnwood. The plat map included “Tract A,” which had the
following notation: “1’ WIDE NUISANCE STRIP TO BE DEEDED TO THE CITY.”
The H&H Plat also noted, “No Parking on Right of Way until remaining Right of
Way is built.” In the “Dedication” section of the Plat, it stated, “Nuisance Strip (1’)
One foot shall be deeded to the City of Lynnwood.” (Emphasis omitted.) A copy
of the Plat map involved in this appeal is provided below.
2 The description of the Plat was, “This plat of WOODLAND ESTATES NO. 3 embraces the West 153.8 feet of the East 307.6 feet of Tract 110, in the Plat of Meadowdale Beach.”
3 No. 86266-9-I/4
The City Planning Commission recommended the City Council grant
preliminary approval of the H&H Plat under the condition that “[a] one foot wide
nuisance strip be provided along the west side of the proposed right-of-way with
a barricade acceptable to the city engineer installed along the entire length of the
strip. The strip is to be shown on the plat as a separate parcel, and a deed given
to the City.” On August 14, 1978, the City Council moved to approve the final
H&H Plat “subject to a one-foot nuisance strip being dedicated to the City.” A
deed conveying the Nuisance Strip to the City was executed on August 15, 1978,
but the deed was never recorded.
Likely because the deed was never recorded, the Nuisance Strip
remained in the name of H&H on the rolls of the Snohomish County Assessor,
and real property taxes continued to accrue. In 1992, Snohomish County
commenced a lien foreclosure against the Nuisance Strip for unpaid taxes. A
judgment was entered in favor of Snohomish County and in a subsequent public
sale in January 1993, the Nuisance Strip was conveyed to Snohomish County.
In 2020, Snohomish County offered the City the opportunity to purchase the
Nuisance Strip, but they declined, seemingly unaware they already were in
possession of the 1978 deed. The County then sold the Nuisance Strip to
Ronald Newman, who owned property to the east of 63rd Ave West, within the
H&H Plat.
In 2020, Newman applied to subdivide property he owned within the H&H
Plat. The City’s Department of Developing and Building Services granted
preliminary approval of the Newman Short Plat. Jeff and Gwen Russell, who
4 No. 86266-9-I/5
owned property adjacent to the Newman Short Plat, opposed the Newman Short
Plat, contending the proposed access to the Newman Short Plat could not be
used because the Nuisance Strip belonged to Newman, not the City.
The City approved the Newman Short Plat application, and Russell
appealed to the City’s hearing examiner in January 2021. The hearing examiner
upheld the City’s approval of the Newman Short Plat on the condition that “prior
to the approval of the engineering plans for the development by the City, the 1’
strip shall have been deeded and accepted by the City of Lynnwood.” Russell
subsequently initiated a LUPA petition appealing the hearing examiner’s
decision. Russell requested the court determine title and legal rights between
the parties as related to the Nuisance Strip. The action was dismissed with
prejudice. Russell appealed, and that action was also dismissed.
In March 2022, Russell initiated a lawsuit against the City challenging the
approval of the Newman Short Plat’s proposed access over 63rd Ave West. In
September 2022, Newman executed a quit claim deed and conveyed the
Nuisance Strip to the City, satisfying the hearing examiner’s conditions of
approval. The deed contained no restrictive covenants. The court held that,
while the LUPA actions could not be relitigated, a genuine issue still remained as
to whether the original developer had dedicated the Nuisance Strip for a
particular purpose. At the time of trial, the City owned the Nuisance Strip.
Trial
At trial, six witnesses presented testimony: Wallace Webster, a plaintiff;
Ashley Winchell, the City’s former community planning manager; Arnold Kay, the
5 No. 86266-9-I/6
City’s former public works supervisor; Karl Almgren, the City’s community
planning manager; Kirk Rappe, the City’s former planner; and neighbor Katherine
Davis. Exhibits admitted included City Council minutes and Planning
Commission meeting minutes concerning the approval of the H&H Plat, e-mails
between former City officials regarding the Nuisance Strip, the 1979 and 2022
deeds, and the H&H Plat, including the subdivision map.
Davis, who owned property to the west of 63rd Ave West, testified that,
when applying for building permits, the City told her that neither she nor the
residents from Woodland Estates were allowed to cross the Nuisance Strip,
which the City called a “dead zone.” Webster, who owned property in Woodland
Estates, testified that when he purchased the property in 1979, a fence ran along
63rd Ave West and separated the street from the properties to the west. When
Webster reached out to the City to get permission to move his mailbox onto the
1-foot strip between 63rd Ave and the fence (because the mailbox was
protruding into the street), the City informed him he could not move the mailbox
onto the strip because it was city property. Webster believed the 1-foot strip was
owned and held by the City as a Nuisance Strip.
At trial, Russell admitted a 2020 e-mail between Rappe and Kay. In
response to a question concerning the purpose of the “1-foot strip on the west
side of 63rd Ave W,” Kay stated: [T]he Woodland Estates created this spite strip when 63rd Ave was built. The intent of the strip was to prevent the property to the west (Newman) from accessing 63rd Ave because they would need the permission of the city. The hope was that the city would honor that request, but I don’t think there was an official agreement that was
6 No. 86266-9-I/7
documented. The strip was dedicated to the city but the dedication language on the plat says “to be deeded to the city.” It is supposed to say “deeded to the city upon recording of the plat.” Hence, the strip was never dedicated to the city.
When asked about the e-mail at trial, Kay testified he did not recall writing it.
When asked if he was familiar with the term “nuisance strip,” Kay said he had
seen it on old plats and his understanding was that “it’s a strip of land that was
set aside to not allow access across that strip of land from one property or right-
of-way to another.” When questioned further, Kay stated, “If there’s any other
question about it, I leave it up to the attorneys.”
Almgren was also asked about his understanding of a nuisance strip.
Almgren said his definition of a nuisance strip is “a strip of land that’s usually
vegetative between an easement or other matters.” Almgren noted that
“nuisance strip” is not defined by the Lynnwood Municipal Code and is an older
term that has since been replaced with other phrases.
After two days of trial, the court ruled in favor of the City. The trial court
held, (1) Russell had no legal right to the Nuisance Strip, (2) the City’s decision to
allow access to the Newman Short Plat over the Nuisance Strip was appropriate,
(3) the case was not barred by res judicata, and (4) Russell’s claim under the
UDJA was appropriate, but they failed to demonstrate any damages. Russell
moved for reconsideration, which the trial court denied. Russell appeal.
Discovery Dispute
In December 2022, before trial, Russell served the City with discovery
requests. Karl Almgren searched records on behalf of the City. He searched
microfilm and utilized the City’s electronic file storage, ApplicationExtender (AX).
7 No. 86266-9-I/8
By February 2023, Almgren believed his search was “comprehensive and
thorough and [the City] had produced all relevant/responsive documents.” In
April 2023, Donna Johnson, the City’s senior records specialist, discovered new
documents related to the case in a Public Works box stored in the Public Works
Department records. She noted this was unusual because plat documents were
typically Planning Department records. Hillary Evans, attorney for the City, noted
the documents had been misfiled, but she provided them to Russell as soon as
they were discovered.
Russell moved to sanction the City for the discovery violation, seeking
relief in the form of $100,000 and/or a default judgment against the City. The trial
court denied Russell’s request to strike pleadings, sanction the City, or enter a
default judgment. Instead, the trial court granted a short trial continuance. The
trial court found the City’s late production was not willful or intentional, but it did
prejudice Russell’s ability to prepare for trial.
After trial, Russell requested attorney fees based on the City’s discovery
violation. The court noted in its order that the City’s violation was not willful, but
Russell still incurred additional attorney fees because of the violation. The court
concluded Russell was entitled to reasonable expenses associated with time
spent reviewing the additional documents and filing related motions resulting in
the court granting a continuance.
Russell requested $32,191.97 in fees. The court noted this request went
“well beyond the Court’s expectation of a request for reasonable expenses
attributable to discovery.” The court concluded, without explanation, that it was
8 No. 86266-9-I/9
reasonable for the Russell’s attorney to spend 42.7 hours drafting and arguing
the motion and preparing a proposed order. Based on a reasonable fee of
$395.00, the court determined $16,866.50 was an appropriate award. The court
reduced the amount by $2,588.88—the amount awarded to the City per
RCW 7.24.100. The City appeals.
ANALYSIS
Findings of Fact and Conclusions of Law
Russell contends findings of fact 2, 11, 15, and 17 are not supported by
substantial evidence. We determine a scrivener’s error exists in finding of fact 2,
which is harmless error, but otherwise the findings of fact are supported by
substantial evidence.
We review the trial court’s findings of fact for substantial evidence.
“ ‘Substantial evidence exists if, when viewing the evidence in the light most
favorable to the prevailing party, a rational trier of fact could find the fact more
likely than not to be true.’ ” In re Dependency of A.C., 1 Wn.3d 186, 194-95, 525
P.3d 177 (2023) (emphasis omitted) (quoting In re Welfare of X.T., 174 Wn. App.
733, 737, 300 P.3d 824 (2013)). If this standard is met, we will affirm the finding;
we do not substitute our judgment for that of the trial court. A.C., 1 Wn.3d at 194.
A party “ ‘must present argument to the court why specific findings of fact are not
supported by the evidence and must cite to the record to support that argument’
or they become verities on appeal.” Buck Mountain Owners’ Ass’n v. Prestwich,
174 Wn. App. 702, 714, 308 P.3d 644 (2013) (quoting Inland Foundry Co. v.
Dep’t of La. & Indus., 106 Wn. App. 333, 340, 24 P.3d 424 (2001)).
9 No. 86266-9-I/10
When a determination is made through legal reasoning from facts in
evidence, it is a conclusion of law. In re Dependency of W.W.S., 14 Wn. App. 2d
342, 362, 469 P.3d 1190 (2020). Conclusions of law, and conclusions of law
mislabeled as findings of fact, are reviewed de novo. Buck Mountain, 174 Wn.
App. at 714.
1. Finding of Fact 2
Finding of fact 2 states, “A deed dated August 15, 1979, was executed by
H&H, conveying the Nuisance Strip to the City (‘1979 deed’); however, this
conveyance was never recorded.” Russell correctly points out the finding
misstates the date of the deed. The actual date of the deed is 1978, not 1979.
Russell contends this is reversable error because “it is unknown to what extent
this incorrect finding was material to the trial court’s reasoning and conclusion.”
But this is clearly a scrivener’s error. In all other references to the conveyance of
the deed, the court correctly listed the date as 1978. And, even if the court did
believe the deed was executed in 1979, this would not affect the court’s intended
findings or decision, or affect Russell’s substantial rights. Therefore, we find it is
harmless error not requiring reversal, but we remand with instructions for the
court to correct the scrivener’s error.
2. Finding of Fact 11
Finding of fact 11 states, The City’s Hearing Examiner noted two references to the Nuisance Strip in the ‘H&H Short Plat.’ ” These noted references were in the Dedication paragraph of the document where it is written in italics that Nuisance Strip (1’) One foot shall be deeded to the City of Lynnwood and on the Replat map on the second page of the (‘H&H
10 No. 86266-9-I/11
Short Plat’) document under Notes where it is written again in italics, Nuisance Strip (1’) One foot shall be deeded to the City of Lynnwood. The Nuisance Strip is also referenced in the ‘H&H’ Short Plat’ map under the words TRACT-A where in Italics it is written, 1’ WIDE NUISANCE STRIP TO BE DEEDED TO THE CITY. . . . This repeated reference does not indicate a purpose or intended use for the Nuisance Strip at issue.
Russell contends the last sentence (“This repeated reference…”) of the
court’s finding is a conclusion of law that construes the plat’s language.
But this sentence is a literal reading of the plain language of the plat
document and map, where no references are made to the purpose or
intended use of the Nuisance Strip. The court was not contending the
Nuisance Strip did not have a purpose or intended use, it was merely
noting any purpose or intended use was not set forth in the text of the
documents.
3. Finding of Fact 15
Finding of fact 15 states, On September 21, 2022, Newman executed a deed conveying the Nuisance Strip to the City of Lynnwood. The City executed the deed on October 2, 2022, and the deed was recorded with the Snohomish County Assessor on October 13, 2022, satisfying the Hearing Examiner’s conditions of approval (“2022 deed”). . . . The deed included no restrictive covenants. At the time of trial, the City owned the Nuisance Strip.
The only portion of finding of fact 15 that Russell appears to take
issue with is the sentence stating, “The deed included no restrictive
covenants.” But, similar to finding of fact 11, the court was merely
concluding no restrictive covenants are conveyed in the plain language of
the deed. Because, on its face, the 2022 deed does not include a
11 No. 86266-9-I/12
restrictive covenant, the trial court’s finding was supported by substantial
evidence.
4. Finding of Fact 17
Finding of fact 17 states, “Petitioners have failed to demonstrate
with documents or testimony provided any legal entitlement to the
Nuisance Strip, including easements or other restrictions.” By determining
the petitioners did not demonstrate a legal entitlement, the court used
legal reasoning it applied to the facts, which is a conclusion of law, not a
finding of fact. But the issue of legal entitlement to the Nuisance Strip is
properly presented as a conclusion of law as well in conclusion of law 3,
and the findings of fact which support it are supported by substantial
evidence contained in the record, as explained below.
5. Conclusion of Law 3(d), (e), (f)
Conclusion of law 3 states, “Petitioners have no legal right to the
Nuisance Strip.” Subsections (d), (e), and (f) are as follows: (d) Here, Petitioners rely on the “H&H Short Plat” map to support the allegation that they have a legal right to the Nuisance Strip. The plain language of the plat map requires the developer to “deed” the Nuisance Strip to the City. No easement or rights were granted to Petitioners or their predecessors as to the Nuisance Strip in the “H&H Short Plat.” (e) The deeds which conveyed the Nuisance Strip to the City—both the 1978 deed and the 2022 deed—do not contain restrictive covenants benefitting Petitioners. (f) The term “Nuisance Strip” as used in plat documents is not binding, determinative, or limiting upon the City’s use of the Nuisance Strip. The term does not impute any intention of the conveyance, but rather refers to the tract or strip itself as displayed on the map page of the [“]H&H Short Plat.”
12 No. 86266-9-I/13
Russell contends the court’s interpretation of the Plat’s language was not
reasonable. Russell maintains “Nuisance Strip” defines the purpose of Tract A
and thereby limits the City’s use of Tract A to that purpose—as a restrictive
covenant or easement.3
When interpreting maps and plats, “the platter’s intention is gathered from
the plat itself.” Gwinn v. Cleaver, 56 Wn.2d 612, 615, 354 P.2d 913 (1960).
Plats should be interpreted as a whole, considering both lines and words. Ditty v.
Freeman, 55 Wn.2d 306, 309, 347 P.2d 870 (1959). Every part of the instrument
should be given effect and “ ‘no part of the plats are to be rejected as
meaningless, if it can be avoided.’ ” Ditty, 55 Wn.2d at 309 (internal quotations
marks omitted) (quoting Mueller v. City of Seattle, 167 Wash. 67, 73, 8 P.2d 994
(1932)). Generally, restrictions in an instrument “will not be extended by
implication to include any use not clearly expressed” and “[d]oubts must be
resolved in favor of the free use of land.” Burton v. Douglas County, 65 Wn.2d
619, 622, 399 P.2d 68 (1965).
Here, Russell claims the map itself and rules of construction support a
reading that Tract A was intended to be dedicated and used as a Nuisance
Strip.4 First, Russell contends that because the map uses a heavy black line to
3 At different points in their brief, Russell implies the Nuisance Strip is both an easement and a restrictive covenant. 4 Russell never explicitly defines “nuisance strip,” but cites to Arnold Kay’s
testimony, where Kay likens a nuisance strip to a spite strip. Neither “nuisance strip” or “spite strip” appear in Washington cases, but “spite strip” has been defined by other jurisdictions as an “artificial strip[] of land created to frustrate a neighboring landowner’s land use right.” Austin Bank of Chicago v. Village of Barrington Hills, 396 Ill. App. 3d 1, 3, 919 N.E. 2d 88 (2009).
13 No. 86266-9-I/14
depict the edge of the plat property and a narrow line to depict the road right-of-
way, the strip was not intended to be part of the road right-of-way. This point is
not contested by the City.
Next, Russell maintains the plain language of the H&H Plat and map
indicate Tract A was meant to be used as a nuisance strip. Russell states “Tract
A” is the legal description of the strip and “Nuisance Strip (1’), One foot shall be
deeded to the City of Lynnwood” is the purpose. Russell contends reading
“Nuisance Strip” as an identifier, similar to “Tract A,” would be redundant and,
therefore “Nuisance Strip” must be its intended use.
But, even if “Nuisance Strip” was the intended use of Tract A, Russell has
not shown how a nuisance strip creates an easement or restriction on the City’s
use of the strip. To support their contention, Russell cites to e-mails from former
City officials discussing Tract A. In one e-mail from Arnold Kay, former
department services supervisor, to Kirk Rappe, former city planner, Kay states, [T]he Woodland Estates created this spite strip when 63rd Ave was built. The intent of the strip was to prevent the property to the west (Newman) from accessing 63rd Ave because they would need the permission of the city. The hope was that the city would honor that request, but I don’t think there was an official agreement that was documented.
At trial, Kay testified his understanding of a nuisance strip is “a strip of
land that was set aside to not allow access across that strip of land from
one property or right-of-way to another.” But Kay went on to say, “[T]hat’s
as far as I have ever taken it. If there’s any other questions about it, I
leave it up to the attorneys.”
14 No. 86266-9-I/15
In another e-mail from Ashley Winchell to Rappe discussing the
Nuisance Strip, Winchell states, “That makes the nuisance strip make
more sense. They didn’t want the existing lots to connect to the street.” At
trial, Winchell testified she knew the e-mail existed, but did not remember
any conversation about the Nuisance Strip.
Regardless, neither Winchell’s or Kay’s testimony provide any
evidence beyond conjecture that the Nuisance Strip was deeded to the
city to be held for the benefit of the plat owners. Furthermore, another
City official, Karl Almgren, testified that, had the intent of the Nuisance
Strip been to ensure people from the west could not access 63rd Ave
West, then “ownership of the nuisance strip should have stayed with the
west.” Almgren noted it was not common for a city to receive property that
benefits private residences.
Without other evidence or legal support, contradicting testimony
from current city officials is not enough to support a claim that the term
“Nuisance Strip” as used in the original deed was anything more than a
reference to the strip of land deeded to the City. Therefore, the court’s
conclusion that the term “Nuisance Strip” did not impute any intention of
the conveyance was supported by substantial evidence.
6. Conclusion of Law 6(a) and (b)
Russell contends conclusions of law 6(a) and (b) are erroneous because
the H&H Plat did not convey an unrestricted fee simple interest in Tract A, but
instead dedicated Tract A as a nuisance strip. The City maintains the plain
15 No. 86266-9-I/16
language of the Plat clearly deeds the Nuisance Strip to the City. We agree with
the City.
According to Black’s Law Dictionary, a “dedication” is “[t]he donation of
land or creation of an easement for public use.” Black’s Law Dictionary 518 (12th
ed. 2024). A “deed” is “[a] written instrument by which land is conveyed.”
Black’s Law Dictionary 520 (12th ed. 2024). “When an individual seeks to
dedicate a fee interest, ‘that intent should be clearly stated and the use should be
unrestricted or, if the use is a condition, the condition should be clearly stated
with a specific right of reversion.’ ” Kiely v. Graves, 173 Wn.2d 926, 933-34, 271
P.3d 226 (2012) (quoting 6 Washington State Bar Association, Washington Real
Property Deskbook § 91.9(1) (3d ed. 2001)); see also Karb v. City of Bellingham,
61 Wn.2d 214, 218, 377 P.2d 984 (1963) (stating a required element of a
dedication is there be “an unequivocal act by the fee owner establishing his
intention to dedicate”). When attempting to extinguish or alter an easement
established by dedication, there must be approval of the easement owner(s).
RCW 64.04.175.
Here, conclusion of law 6 states, “Respondent City of Lynnwood properly
allowed access over the Nuisance Strip.” Subsections (a) and (b) are as follows: a. The municipalities have absolute power over their property, rights-of-way and streets therein limited only by the constitution. b. Because the City is the undisputed owner of the Nuisance Strip, and Petitioners demonstrated no dedicated limitation on use of the Nuisance Strip, actions taken by the City in approving the Newman Short Plat were appropriately taken.
(Citation omitted.)
16 No. 86266-9-I/17
Russell contends the trial court improperly concluded a fee simple interest
in the Nuisance Strip was deeded to the City and, accordingly, its decision
improperly extinguished an anti-access easement (the Nuisance Strip). But
Russell’s argument rests on the contention that the Nuisance Strip was dedicated
to the City. The Plat and Deeds make clear that the Nuisance Strip was deeded
to the City, not dedicated. The plain language of the Plat and deeds indicate the
Nuisance Strip was to be “deeded” to the City. The only reference to “dedication”
in the Plat is that the language “Nuisance Strip (1’) One foot shall be deeded to
the City of Lynnwood” is written under the “Dedication” section of the 1978 deed.
Furthermore, had the Nuisance Strip been intended as a dedication, the
grantor would have used the word “dedication.” In that same section, the
language states, “[W]e . . . hereby declare this plat and dedicate to the public
forever, all roads and ways shown hereon.” By using both the words “dedication”
and “deed,” we must assume the grantor understood the definition of each word.
As Russell notes in their brief, “the objective manifestation of intent should ‘be
determined from the words actually used and, ordinarily those words are given
their ordinary, usual, and popular meaning.’ ”5 (Emphasis omitted.)
Even without resorting to interpreting the grantor’s intent, the plain
language of the Plat and deeds do not convey anything other than a deeded
5 Russell does not provide authority for this citation, but this is a popular concept of contract interpretation cited by courts. See e.g., Hulbert v. Port of Everett, 159 Wn. App. 389, 245 P.3d 779 (2011) (“Courts ‘impute an intention corresponding to the reasonable meaning of the words used,’ and words are given their ordinary, usual, and popular meaning unless the agreement as a whole clearly demonstrates otherwise.” (quoting Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005)).
17 No. 86266-9-I/18
interest to the City. Unless clearly expressed, restrictions will not be “extended
by implication.” Burton, 65 Wn.2d at 622. Neither the Plat nor the1978 or 2022
deed contain any restrictive covenants or limitations on the use of the Nuisance
Strip.
Because the clear language of the Plat and deeds do not evidence a
dedication, the trial court’s conclusion of law 6 is supported by the findings of fact
and substantial evidence. Therefore, the trial court’s decision did not improperly
vacate an easement created by dedication.
The trial court’s findings of fact and conclusions of law are supported by
substantial evidence; however, we remand with instructions to correct the
scrivener’s error in finding of fact 2.
Extrinsic Evidence
Russell contends the trial court erred when it did not consider extrinsic
evidence to determine the intent of the Nuisance Strip. The City claims extrinsic
evidence was not necessary because the deeds and Plat were not ambiguous,
but, nonetheless, the court did admit and consider extrinsic evidence. Because
the court did consider extrinsic evidence, no error occurred.
When a plat is ambiguous, “surrounding circumstances and even extrinsic
evidence may be considered for the purpose of determining the real intention of
the plattor [sic].” Tsubota v. Gunkel, 58 Wn.2d 586, 589-90, 364 P.2d 549
(1961). A plat is ambiguous if the terms in the written instrument “are uncertain
or capable of being understood as having more than one meaning.” M.K.K.I ,
Inc. v. Krueger, 135 Wn. App. 647, 654, 145 P.3d 411 (2006). While extrinsic
18 No. 86266-9-I/19
evidence can be used to shed light on what is written, it should not be used to
deduce what was intended to be written. Wilkinson v. Chiwawa Comty. Ass’n,
180 Wn.2d 241, 251, 327 P.3d 614 (2014).
Even when the words of a document appear clear and unambiguous,
extrinsic evidence may be allowed to discern the meaning or intent of the words.
Hollis v. Garwall, Inc. 137 Wn.2d 683, 693, 974 P.2d 836 (1999). This rule is
called the “context rule” and has been applied when interpreting contracts and
restrictive covenants. See Miller v. Kenny, 180 Wn. App 772, 789, 325 P.3d 278
(2014) (contracts); Hollis, 137 Wn.2d at 696 (restrictive covenants). But, even
when the context rule is applicable, “extrinsic evidence that ‘would show an
intention independent of the instrument’ or ‘would vary, contradict or modify the
written word’ ” is not admissible. Miller, 180 Wn. App. at793 (quoting Hollis, 137
Wn.2d at 695).
Here, Russell contends numerous times the Plat and deed are
unambiguous, yet also insists extrinsic evidence should have been admitted.
Russell lists nine specific pieces of evidence the court “should have, but did not,
consider,”6 but every item Russell cites to was included as an exhibit at trial,
6 “(1) [T]he City engineer’s August 20, 1976, memo to the Planning Director; (2) the July 1976 Planning Commission Meeting Minutes; (3) the August 1976 City Council Meeting Minutes; (4) the 1978 City Council Meeting Minutes; (5) Wallace Webster, II’s and Kathy Davis’s respective testimonies regarding the City’s subsequent conduct regarding Tract A; (6) The City Executive’s 1995 comments regarding Tract A’s purpose when Kathy Davis subdivided her property; (7) Arnold Kay’s e-mail to Kirk Rappe regarding Tract A being a nuisance or “spite” strip and its intended use; (8) Ashley Winchell’s testimony regarding her expressed understanding of the purpose for which Tract A was conveyed to the City; and (9) the October 2022 deed from the current developer to the City.”
19 No. 86266-9-I/20
which the court considered. In its findings and conclusions, the court stated it
“considered all testimony and documentary evidence admitted.” The court also
opined that, while “[i]t is unnecessary to consider evidence outside the plat
document and deeds at issue . . . extrinsic evidence presented at trial was
insufficient to determine the intent of the city of Lynnwood and owners of
surrounding parcels in the 1970s to support a restriction on the City’s use of the
Nuisance Strip, which it now owns in fee simple.”
Because the court did consider extrinsic evidence, we conclude the trial
court did not err.
Purpose of “Nuisance Strip”
Russell contends the trial court erred because it never determined the
purpose of the term “Nuisance Strip.” Because the court addressed the purpose
of the Nuisance Strip in its findings and conclusions, we conclude no error
occurred.
Though Russell makes the claim that the trial court never determined the
purpose of the nuisance strip, they note in the same paragraph that “the trial
court used ‘Nuisance Strip’ as a defined term that described the real property
conveyed.” The court determined the term “Nuisance Strip” imputed no intention
of conveyance and simply referred to the strip itself. This determination was
supported by substantial evidence in the record (see conclusion of law 3).
Because the trial court properly addressed the purpose of the term “Nuisance
Strip,” it did not err.
20 No. 86266-9-I/21
Burden of Proof
Russell contends they should not have been required to prove the
developer intended to impose a restrictive covenant on Tract A because the
developer clearly conveyed the Nuisance Strip as a non-access easement.
Russell’s argument is not entirely clear, but presumably they are contending they
should not have been required to prove intent of the developer because Tract A
was clearly conveyed as a non-access easement. This entire argument rests on
the assumption that it was clear from the Plat language Tract A was dedicated to
the city for a particular purpose. Because the findings, which are supported by
substantial evidence, do not support this conclusion, Russell’s contention that
they were required to meet a higher burden of proof is moot.
Discovery Violation
Russell contends the trial court erred when it concluded the City’s
discovery violation was neither intentional nor willful. Because multiple witnesses
testified the responsive documents were misfiled, and the City produced them
once they were discovered, the trial court did not err in concluding the violation
was not intentional.
We review a trial court’s discovery sanctions for abuse of discretion.
Magana v. Hyundai Motor America, 167 Wn.2d 570, 582, 220 P.3d 191 (2009).
“ ‘A trial court abuses its discretion if its decision is manifestly unreasonable or
based on untenable grounds or untenable reasons.’ ” J.K. v. Bellevue School
Dist. No. 405, 20 Wn. App. 2d 291, 303, 500 P.3d 138 (2021) (quoting Cook v.
Tarbert Logging, Inc., 190 Wn. App. 448, 461, 360 P.3d 855 (2015).
21 No. 86266-9-I/22
Here, Russell contends the City’s violation was willful because the City
produced responsive documents from only one of its departments (Planning
Department), they did not request other departments, such as the Public Works
Department, to search their records, and the they did not maintain a reliable
documentation management and retrieval system. Russell cites to Magana, 167
Wn.2d 570, to support this contention, but that case is distinguishable.
In Magana, the court sanctioned Hyundai for failing to maintain an
adequate document retrieval system, refusing to search beyond their legal
department, and failing to supplement incorrect responses when it learned
additional information. Id. at 586-87. The court noted, “A corporation must
search all of its departments, not just its legal department, when a party requests
information about other claims during discovery.” Id.at 585. It also stated that
because “Hyundai is a sophisticated multinational corporation, experienced in
litigation,” it was required to maintain a responsive document retrieval system.
Id. at 586.
Here, Almgren, who searched for discovery materials on behalf of the City,
stated he did not search departments other than the Planning Department for
responsive documents because he “was unaware and could not have predicted
that these records would have been kept as ‘Public Works’ records.” Donna
Johnson, who ultimately found the 1978 Plat, noted she was surprised to find plat
records saved as Public Works records because plat documents are typically
Planning Department records. It was only after she inadvertently found the Plat
that she learned plats were historically saved with Public Works. Johnson stated
22 No. 86266-9-I/23
she did not believe the City’s initial discovery response was faulty or flawed,
because normally one would not search outside the department that created the
records.
Additionally, while both Johnson and Almgren admitted the AX system
sometimes used to search records was clunky, it was not the only method they
employed. Both Johnson and Almgren performed manual searches for
information related to the Woodland Plat. Furthermore, the City of Lynnwood is
far from a “sophisticated multinational corporation experienced in litigation” that
should be expected to have a state-of-the-art document retrieval system.
Because the City made ample effort to locate documents in response to
Russell’s discovery request and promptly provided the newly discovered
materials, we conclude the trial court did not abuse its discretion when it found
the City’s discovery violation to be neither intentional nor willful.
Uniform Declaratory Judgment Act
Russell alleges the trial court erred when it dismissed the Uniform
Declaratory Judgment Act, chapter 7.24 RCW, (UDJA) claim after determining
Russell had properly asserted a claim for declaratory relief. The City maintains
the UDJA claim was properly dismissed because Russell did not demonstrate
legal entitlement to the Nuisance Strip. Because Russell does not properly brief
the issue, we decline to address it on appeal.
Under RAP 10.3, the brief of a petitioner must include “argument in
support of the issues presented for review” as well as “citations to legal authority
and references to relevant parts of the record.” This court may decline to
23 No. 86266-9-I/24
consider an appeal that does not provide “adequate, cogent argument and
briefing.” Satomi Owners Ass’n v. Satomi, LLC, 167 Wn.2d 781, 808, 225 P.3d
213 (2009).
Here, Russell’s briefing on the trial court’s dismissal of the UDJA claim
does not contain any citations to legal authority or the record. Because Russell
does not properly brief this issue, we decline to address it on appeal.
Res Judicata
In its response brief, the City alleges the trial court erred when it
determined Russell’s claim was not barred by res judicata. Russell addresses
this issue in their reply, contending their claim is not barred by res judicata
because the present action addresses intent, which was not considered by the
UDJA action. Because the City raises this issue in their response, it is not
properly before this court for review.
For an appellate court to grant a respondent affirmative relief, the
respondent must file a timely notice of appeal or a notice of discretionary review,
or relief may be granted if “demanded by the necessities of the case.”
RAP 2.4(a).
Here, the City raises res judicata for the first time in their response, not in
their cross-appeal. Because a failure to cross-appeal generally precludes review
on appeal, Amalgamated Transit Union Local 587 v. State, 142 Wn. 2d 183, 202,
11 P.3d 762 (2000), we decline to address the issue.
24 No. 86266-9-I/25
Attorney Fees
In its cross-appeal, the City contends the trial court abused its discretion
when it awarded Russell attorney fees based on the City’s discovery violation.
Russell claims the amount awarded was reasonable. We agree with the City that
the trial court abused its discretion when it failed to include findings to support its
award of fees.
We apply a two-part analysis when reviewing a trial court’s decision to
award attorney fees. First, “we review de novo whether there is a legal basis for
awarding attorney fees by statute.” Falcon Props. LLC v. Bowfits 1308 LLC, 16
Wn. App. 2d 1, 11, 478 P.3d 134 (2020). Then, we review the decision to award
or deny fees and the reasonableness of the award for abuse of discretion.
Falcon Props., 16 Wn. App. 2d at 11. A court abuses its discretion when its
decision is “ ‘manifestly unreasonable, exercised on untenable grounds, or
exercised for untenable reasons.’ ” SentinelC3, Inc. v Hunt, 181 Wn.2d 127, 144,
331 P.3d 40 (2014) (quoting Humphrey Indus., Ltd. v. Clay Street Assocs., 170
Wn.2d 495, 506, 242 P.3d 846 (2010).
Courts typically utilize the lodestar method in calculating fees. Mahler v.
Szucs, 135 Wn.2d 398, 433-34, 957 P.2d 398 (1998). Under this analysis, the
court first determines the reasonable amount of hours counsel spent “securing a
successful recovery for the client.” Mahler, 135 Wn.2d at 434. This
determination requires the court to “exclude from the requested hours any
wasteful or duplicative hours and any hours pertaining to unsuccessful theories
or claims.” Mahler, 135 Wn.2d at 434. The court then calculates the
25 No. 86266-9-I/26
reasonableness of the attorney’s hourly rate. Mahler, 135 Wn.2d at 434. Those
two numbers (hours and fee) are multiplied to determine the appropriate award.
Mahler, 135 Wn.2d at 434. When conducting this analysis, the trial court “must
supply findings of fact and conclusions of law sufficient to permit a reviewing
court to determine why the trial court awarded the amount in question.”
SentinelC3, 181 Wn.2d at 144.
Civil Rule (CR) 37 authorizes a court to impose sanctions when a party
fails to respond to interrogatories and requests for production. CR 37(d); Smith
v. Behr Process Corp., 113 Wn. App. 306, 324, 54 P.3d 665 (2002). “The
purposes of sanctions orders are to deter, to punish, to compensate and to
educate.” Wash. State Physicians Ins. Exchange & Ass’n v. Fisons Corp., 122
Wn.2d 299, 356, 858 P.2d 1054 (1993). If a party’s violation is neither intentional
nor willful, this may be considered as a mitigating factor when imposing
sanctions. Fisons Corp., 122 Wn.2d at 356.
Here, the City contends the amount of the award was not supported by
substantiated findings. The City claims Russell failed to provide invoices or
concurrent billing statements for the hours claimed, and it is unclear how the
court reached its determination that 42.7 hours was a reasonable amount of time
for Russell’s counsel to spend drafting and arguing the motion and preparing a
proposed order. Russell contends the court critically evaluated the fee request,
as evidenced by it reducing the amount requested. But, even if the court did
critically evaluate the request, it was required to provide an explanation about its
calculation.
26 No. 86266-9-I/27
In its order determining Russell was entitled to reasonable expenses, the
court noted it “envision[ed] the request to be reasonably related to time spent
reviewing the 313 pages provided on or about April 19, 2023 and the filing of the
Motion to Strike Pleadings and Grant a Default that resulted in a continuance on
May 5, 2023.” After reviewing Russell’s attorney, Dennis McGlothin’s declaration
and reply brief, the court determined Russell did not “sufficiently specify[] time
spent in reviewing and addressing new information.” But, the court found 42.7
hours was a reasonable amount of time to spend drafting and arguing the
motion, and preparing a proposed order. Accordingly, the court granted fees
based on 42.7 hours of work. While this calculation may be accurate, the trial
court was required to provide findings of fact to support its award. Therefore, we
remand to the court to do so.
We affirm, but remand with instructions to correct the scrivener’s error and
provide findings of fact in support of its award of attorney fees.
WE CONCUR: