Jeffrey Haley, Res. V. Mjd Properties, Llc And John Pugh, Apps.

• Court: Court of Appeals of Washington
• Decided: April 24, 2023
• Docket: 84603-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JEFFREY HALEY, No. 84603-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION MJD PROPERTIES, LLC, a Washington limited liability company; and JOHN PUGH, an individual,

Appellants.

BIRK, J. — In a lawsuit filed in 2012, Jeffrey Haley asserted a right to control

the height of arborvitae trees that form a hedge along a shared property line with

his downhill neighbor, MJD, to preserve the view from his uphill property. The trial

court resolved this claim against Haley. In a second lawsuit filed almost a decade

later, Haley relied on different legal theories to assert the same right to cut or

otherwise limit the height of the same trees. We conclude Haley’s claim is barred

under principles of claim preclusion. The trial court erred in denying MJD summary

judgment on Haley’s claim for declaratory judgment concerning the arborvitae

trees. We reverse and remand with instructions to dismiss this claim.

I

Jeffrey Haley, MJD Properties LLC, and John Pugh own adjacent properties

on Mercer Island.1 MJD Props., LLC v. Haley, 189 Wn. App. 963, 966, 358 P.3d

1 Some of the background facts are derived from this court’s published decision stemming from prior litigation between MJD and Haley. No. 84603-5-I/2

476 (2015). Haley purchased his property in 2005. Thereafter, Pugh formed MJD

and in December 2011, MJD purchased the waterfront lot next to Pugh’s own

waterfront property. Id. Haley’s property sits directly behind and uphill from both

waterfront lots. Id.

A few years before Haley purchased his property, the former downhill

owners of MJD’s waterfront lot, Nancy and Duane Oyler, planted a hedgerow

consisting of 22 arborvitae trees along part of the property line between their

property and the uphill lot later purchased by Haley. The Oylers did not obtain a

survey at the time of planting, but intended to locate the trees on their side of the

property line.

By at least the end of 2011, Haley had expressed interest in trimming the

height of the arborvitae trees to protect the water view from the second floor of his

home. Haley sent the Oylers a letter dated November 28, 2011, outlining his legal

reasoning why he was entitled to an “implied easement” to trim the trees, and

requested the Oylers sign an express easement to that effect. The Oylers did not

respond or grant his request.

After the Oylers sold their lot to MJD, Haley continued his efforts to

persuade the new owner to allow Haley to trim the top of the arborvitae trees and/or

to grant a view easement over MJD’s property. In March 2012, Haley asserted to

Pugh a separate easement to park vehicles on parts of MJD’s property, which

Haley sought to negotiate alongside Haley’s asserted “view rights.”

On July 10, 2012, MJD filed a lawsuit against Haley, claiming timber

trespass for Haley’s allegedly having trimmed the height of a weeping European

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beech tree on MJD’s property after the Oylers moved from the property but before

they sold it to MJD. Id. MJD also made claims about utility lines and sought a

declaratory judgment that Haley had no view rights affecting its property.

At successive stages of MJD’s 2012 action, Haley asserted counterclaims.

Among these claims, Haley asserted “[c]laims for [d]eclaratory [r]elief” that he had

“a right to trim trees on Plaintiff’s property for view protection.” Haley argued he

had a right to trim the height of the arborvitae trees on the property line, an implied

easement to do so, and the condition of the arborvitae trees reaching a height that

blocked his view constituted a nuisance, an outrage, and intentional infliction of

emotional distress.

In support of his claims, Haley argued the home on his property was

designed to take advantage of the view with the majority of the living space situated

on the second floor. Haley relied on a purported practice or agreement from the

time when all the lots were held by members of the same family under which the

owner of Haley’s property had permission to trim the height of the arborvitae trees.

Haley also claimed to have reached an “accommodation” with the Oylers whereby

they allowed him to trim the height of the arborvitae trees to protect his view, but

MJD refused to maintain the hedge in a similar manner or allow him to do so.

In the same counterclaims, Haley alleged that a prominent cedar tree that

Pugh had planted was a spite structure. Haley did not allege the arborvitae trees

were a spite structure. Haley sought relief that would allow him to move the

3 No. 84603-5-I/4

arborvitae trees onto his property and cut down those trees which straddled the

property line.2

In response to Haley’s counterclaims, MJD relied on, among other things,

testimony by the Oylers disputing Haley’s assertion there had been an agreement

or practice among the former family owners to protect the uphill owner’s view, and

denying that they had ever given Haley permission to trim the height of the trees.

In successive orders, the superior court dismissed Haley’s counterclaims

concerning the arborvitae trees for implied easement, nuisance, and outrage. After

arbitration among the parties of competing timber trespass claims, and an appeal,

both involving issues unrelated to the arborvitae trees, the superior court entered

final judgment on MJD’s 2012 action on May 1, 2017. Neither party appealed this

judgment.

It appears that the seeds of the present dispute were sown when, on

September 20, 2020, Haley e-mailed Pugh proposing to replace the arborvitae

trees with a seven- or eight-foot-high fence. Pugh would not agree, and Haley and

Pugh’s current attorney later exchanged further e-mails. In these e-mails, Haley

asserted that Pugh’s gas line crossed Haley’s property without an easement and

amounted to a trespass, and Pugh’s attorney asserted that Haley’s sewer line

crossed Pugh’s property without an easement and amounted to a trespass, and

that Haley was unlawfully discharging water across Pugh’s property.3

2 Haley’s requested relief implicitly would have given him control over the arborvitae trees by moving them onto his property or otherwise felling them. 3 Pugh’s attorney threatened that Haley would have to move his sewer line if he did not agree to Pugh’s terms. Haley would later contend that moving his sewer line in the manner Pugh came to demand would cost him $200,000.

4 No. 84603-5-I/5

On May 13, 2021, Haley filed the present lawsuit against MJD. Haley’s

complaint alleged that (1) Haley’s house was built to take advantage of the downhill

view; (2) the Oylers “acquiesce[d]” when Haley had in the past trimmed the height

of the arborvitae trees to approximately 14 feet; and (3) Haley had sought but been

refused permission from MJD to trim their height in 2013. Haley claimed the

arborvitae trees, now grown to an impressive height, deprived his property of light

and air.4 Haley also asserted the trees now collectively amounted to a spite

structure and sought declaratory relief that he had the right to maintain them by

trimming their height.

MJD answered, and raised, among other things, a defense of claim

preclusion as to Haley’s claims concerning the arborvitae trees. MJD asserted

counterclaims seeking a declaratory judgment that Haley had no right to top, cut,

remove, or kill any arborvitae trees. MJD also asserted counterclaims for trespass,

declaratory judgment, nuisance, and waste, based on Haley’s sewer line and

alleged discharge of water onto Pugh’s property. Haley counterclaimed further

against Pugh personally, for alleged negligence related to Haley’s sewer line.

MJD sought summary judgment dismissal of Haley’s claims concerning the

arborvitae trees, arguing that the claims were barred by claim preclusion and the

statute of limitations.5 MJD also asserted that Haley’s requested right to trim the

4 At the time of trial in this matter in May 2022, the arborvitae hedge had reached a height of 23 feet. 5 MJD asserted below that Haley’s claims for declaratory relief concerning the arborvitae trees were governed by either RCW 4.16.080(2) (three-year statute of limitations for claims asserting injury to “person or rights of another”) or RCW 4.16.130 (two-year limitations period for actions not covered by other limitations provisions). On appeal, MJD’s argument is limited to RCW 4.16.080.

5 No. 84603-5-I/6

height of the trees was inconsistent with Washington law governing boundary

trees. The court granted MJD’s summary judgment motion in part, and dismissed

Haley’s claim that the arborvitae trees were a spite structure under RCW 7.40.030

on the basis of claim preclusion. The court denied summary judgment on Haley’s

claim for declaratory relief concerning the arborvitae trees.

After the summary judgment hearing, Haley sought and was granted leave

to file an amended complaint. Haley somewhat reframed his claim concerning the

arborvitae trees, characterizing them as a “common boundary line Hedge” and

sought an absolute right to trim the trees to eight feet above grade. The amended

complaint states, “Despite a long history of maintaining the Hedge at a height of

approximately 14 feet so as not to block light and air from the Haley Property, a

practice that predates MJD’s ownership of the MJD Property, MJD has made no

effort to trim that portion of the Hedge located on the MJD Property and instead

has taken extraordinary steps to prevent Haley from trimming the tops of any plants

of the Hedge so that it has become overgrown, depriving the Haley Property of

light and air.” At the same time, Haley added further claims concerning his sewer

and storm drainage.6

MJD sought summary judgment dismissal of Haley’s amended claims

concerning the arborvitae trees, again asserting the defense of claim preclusion.

The trial court denied the motion, noting that MJD raised claim preclusion in its first

motion for summary judgment and there was no basis to reconsider its prior ruling.

6 It appears from the record that during the pendency of the action, Haley made further discoveries concerning drainage from his property and engaged with the City of Mercer Island and Pugh about the necessary drainage measures.

6 No. 84603-5-I/7

The court held a bench trial over five days. The parties have each elected

not to supply this court with a report of proceedings, and do not challenge any of

the court’s findings based on the evidence at trial. On August 4, 2022, the court

entered findings of fact and conclusions of law. Based on the listed witnesses, the

court’s rulings, as well as the balance of our record, it appears that the evidence

at trial focused on the parties’ respective sewer line, water discharge, and drainage

claims. These claims are not before us and we do not comment on them, other

than to observe that the court substantially ruled that Haley’s sewer line did not

need to be moved, it was not a trespass, the drainage from his property could

legally be directed to the portion of Pugh’s property over which it had historically

discharged to Lake Washington, and Haley failed to prove that Pugh had damaged

Haley’s sewer line. Apart from recognizing a prescriptive easement for Haley’s

sewer line to continue to exist apparently where it always had, the court dismissed

all claims for affirmative relief with no award of costs or attorney fees to either party.

The superior court’s August 4, 2022 rulings disposed of all claims between

the parties with the exception of Haley’s claim for declaratory relief concerning the

arborvitae trees. The trial court concluded the evidence presented at trial was

insufficient to adjudicate this claim. The court ordered the parties to obtain an

additional survey assessing the position of the arborvitae trees relative to the

property line at a height of 4½ feet above the ground. Only MJD offered a new

survey. The new survey showed that when measured at the height of 4½ feet, out

7 No. 84603-5-I/8

of the 22 trees, 4 stood entirely on MJD’s property, and the other 18 straddled the

property line.7

On September 20, 2022, the court entered a “Final Order” concerning the

arborvitae trees. On October 19, 2022, the court entered further findings of fact

and conclusions of law and final judgment on Haley’s claim for declaratory relief

concerning the arborvitae trees, generally conforming to the final order. Among

other things, the court determined that, under Washington law, the 18 arborvitae

trees located on the joint property line were owned by Haley and MJD as tenants

in common. Based on this determination, and relying on the conclusion that all 22

arborvitae trees “form a single inseparable common unit barrier,” the court entered

an order governing their future care and maintenance.

MJD filed a notice of appeal to this court and posted a bond superseding

the judgment.

II

MJD makes four assignments of error, all concerning the arborvitae trees.8

MJD first asserts that the trial court erred in denying summary judgment as to all

of Haley’s claims relating to the arborvitae trees based on claim preclusion. We

agree. Because this issue is dispositive, we do not reach MJD’s remaining

assignments of error.

7 The ground-level survey had indicated that a single tree, tree “O,” stood entirely on Haley’s property. However, according to the new survey measuring at 4½ feet above the ground, tree “O” was only 24.0 percent on Haley’s property, and was 76.0 percent on MJD’s property. 8 MJD thus abandons any claims of error concerning the parties’ respective sewer line, water discharge, and drainage claims.

8 No. 84603-5-I/9

A

Although Haley suggests that we must review the trial court’s ruling on claim

preclusion for an abuse of discretion, it is well established that the application of

claim preclusion is an issue of law and our review is de novo. Berschauer Phillips

Constr. Co. v. Mut. of Enumclaw Ins. Co., 175 Wn. App. 222, 227, 308 P.3d 681

(2013). Claim preclusion, historically known as res judicata, bars not only claims

that were raised and litigated, but also claims that could have been raised and

litigated in the prior action. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,

865, 93 P.3d 108 (2004). For claim preclusion to apply, the prior action must have

resulted in a final judgment on the merits, and the prior and subsequent actions

must involve the same (1) subject matter, (2) cause of action, (3) persons or

parties, and (4) quality of persons for or against whom the decision is made.

Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254 P.3d 818 (2011).

In its August 2022 ruling, the trial court articulated the following reasons why

claim preclusion did not bar Haley’s claim for declaratory judgment in the second

lawsuit: (1) Haley asserted a claim in equity in the second lawsuit that was not

adjudicated in the first lawsuit; (2) the arborvitae trees had grown taller since the

first lawsuit was filed; (3) Haley alleged that the trees blocked his view in the first

action, whereas in the second lawsuit, he claimed that the trees blocked light and

air, and (4) the claims raised in the second lawsuit were not “litigated to their fullest

extent” in the earlier case. In the same vein, Haley argues on appeal that claim

preclusion did not apply because, although he asserted a “similar right” in the

earlier case to cut the arborvitae trees, his claim was based on different legal

9 No. 84603-5-I/10

theories—including implied/prescriptive easement, nuisance and outrage—and

because those claims were not “fully litigated” in the first lawsuit. Haley also

maintains he was entitled to pursue declaratory relief in the second action because

that claim was based on new evidence of MJD’s spite and malice and additional

recent growth of the hedge.

But, in fact, Haley did seek declaratory relief in the prior action, as he does

in this action. And, whether or not claims were previously raised or “litigated to

their fullest extent,” claim preclusion applies if the claims raised in a subsequent

action could have been brought and adjudicated in a prior action. Hisle, 151 Wn.2d

at 865. To the extent that Haley relied on different underlying legal theories in the

two lawsuits, there is no reason that Haley could not have asserted all of his legal

claims related to the arborvitae trees in the first lawsuit. See Sound Built Homes,

Inc. v. Windermere Real Est./S. Inc., 118 Wn. App. 617, 632, 72 P.3d 788 (2003)

(rejecting position that “a party can bring as many actions as he or she has

substantive legal theories, even if all theories involve the same facts, the same

evidence, and the same transaction”).

Contrary to Haley’s assertion, his counterclaims related to arborvitae trees

in the 2012 proceeding were “fully litigated.” The trial court’s initial summary

judgment order dismissed most of Haley’s counterclaims, including his claim of a

“right to trim trees” on MJD’s property. In a subsequent order, the court specifically

dismissed Haley’s claim of nuisance based on MJD’s refusal to control the height

of the arborvitae trees and allowed them to block the views from his second story.

The series of orders that culminated in a final judgment in 2017 thus fully resolved

10 No. 84603-5-I/11

Haley’s counterclaims in the 2012 action. That the hedge continued to grow

between the first and second lawsuits did not change the underlying factual basis

for Haley’s claims. In both actions, Haley asserted the same right to trim the height

of the arborvitae trees.

B

Turning to the elements of claim preclusion, application of the first, third,

and fourth elements is straightforward. The first element, the same subject matter,

is met. Haley’s claims in both actions involve the same arborvitae trees that form

a hedgerow along the boundary line of Haley’s and MJD’s properties and MJD’s

refusal to take measures to control their height. And, the persons and parties

involved in the 2012 lawsuit and the present lawsuit—Haley, MJD, and Pugh—are

the same and appeared in the same capacity in each case.

For the second element, Washington does not employ a specific test to

determine the identity of causes of action. Rains v. State, 100 Wn.2d 660, 663-

64, 674 P.2d 165 (1983). Our courts use four factors for determining whether two

causes of action are identical for purposes of claim preclusion: (1) whether rights

or interests established in the prior judgment would be destroyed or impaired by

prosecution of the second action; (2) whether substantially the same evidence is

presented in the two actions; (3) whether the two suits involve infringement of the

same right; and (4) whether the two suits arise out of the same transactional

nucleus of facts. Berschauer, 175 Wn. App. at 230. All four elements need not be

present to bar the second action. See Rains, 100 Wn.2d at 664.

11 No. 84603-5-I/12

The first consideration, impairment of rights or interests, is met. In the

present case, Haley sought a ruling that the arborvitae trees constituted a spite

structure and a ruling establishing Haley’s right to trim the trees, including those

located on MJD’s property and those on the property line. The final judgment in

the first lawsuit extinguished Haley’s claim of a legal or equitable right to trim the

height of the arborvitae trees, and his claim that MJD had an obligation to maintain

the trees at a particular height. Allowing Haley to prosecute those same claims in

subsequent litigation against MJD and to seek declaratory judgment to the

opposite effect of the prior rulings impaired the rights established by the prior final

Haley’s claims in both cases concerning the arborvitae trees were premised

on the same evidence and nucleus of alleged facts. In both cases, Haley alleged

that his home was designed to take advantage of views over the downhill

waterfront lot, that the Oylers acquiesced to an arrangement whereby Haley was

permitted to trim the trees to a height of approximately 14 feet above grade, and

that after it purchased the property, MJD refused to honor the prior arrangement

by allowing Haley to trim the arborvitae trees or otherwise taking action to reduce

the height of the hedge. While Haley maintains that his claim for declaratory relief

in this case was based on new evidence of MJD’s “spite and malice,” he identifies

no new evidence or conduct that relates to the arborvitae trees. His consistent

allegation in both lawsuits was that after purchasing the property in December

2011, MJD refused to trim the hedge or to allow Haley to perform any maintenance

that would affect the height of the trees.

12 No. 84603-5-I/13

And finally, Haley’s claims in both cases involve infringement of the same

asserted right to maintain the trees or control their height. This is so even though

Haley differently described the alleged harm resulting from the tall hedge in the

two cases—before, blocking views, and now, blocking light and air. Both actions

(as reflected in the pleadings and declarations) involve the same evidence, the

same purported infringement of rights, and the same transactional nucleus of facts.

The claims constitute the same cause of action. Claim preclusion is established.

We reverse the trial court’s “Final Order” related to arborvitae trees entered

on September 20, 2022 and its additional findings of fact and conclusions of law

entered on October 28, 2022. We remand for dismissal of Haley’s claim for

declaratory judgment.

WE CONCUR: