Kenneth A. Adams V. Emmet L. Nulph

• Court: Court of Appeals of Washington
• Decided: August 11, 2025
• Docket: 87376-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KENNETH A. ADAMS and DEE ADAMS, husband and wife, No. 87376-8-I

Appellants, DIVISION ONE

v. UNPUBLISHED OPINION

EMMETT L. NULPH, a single person and ELN HOLDINGS, LLC, a Washington limited liability company,

Respondents.

CHUNG, J. — Kenneth A. Adams and Dee Adams (collectively the “Adamses”)

have an access easement crossing Emmett Nulph’s property. Since the Adamses and

Nulph have owned their respective properties, there has been an approximately 8.5-foot

paved driveway on the designated easement. Nulph rezoned the property for his dental

office and made various improvements, including repaving the existing paved driveway

and adding landscaping and curbing along part of it. The Adamses filed a claim against

Nulph alleging trespass of the access easement. The parties filed cross-motions for

summary judgment. The Adamses then amended their complaint alleging that Nulph’s

improvements and landscaping unreasonably encroached and interfered with their

access easement by depriving them of using approximately 13 feet of it. The trial court

denied the Adamses’ motion for summary judgment, granted Nulph’s motion for

summary judgment, and dismissed the Adamses’ claims. As we find no error, we affirm. No. 87376-8-I/2

FACTS

In 1978, Larry and Betty Luppino (collectively the “Luppinos”) and Joseph and

Frieda Burckhard (collectively the “Burckhards”) recorded an amended short plat that

granted and reserved an “easement for access as shown on the face of the short plat”

for two residential lots in Yakima, Washington (the City). The Luppinos were the owners

of Lot 1, the servient estate, and the Burckhards were the owners of Lot 2, the dominant

estate. The plat shows a 22-foot-wide easement that crosses the south side of the

Luppinos’ property to grant the Burckhards access from S. 72nd Avenue, which runs

north-south, to their property, which is located to the east of the Luppinos’ lot. The

Luppinos and the Burckhards established a shared access driveway within the

easement area.

In February 1999, the Burckhards sold Lot 2 to Kenneth Adams by warranty deed

subject to the recorded access easement. In October 2003, Kenneth deeded the

property to his marital community, consisting of himself and his wife, Dee Adams.

In May 2008, Betty Luppino sold Lot 1 to Emmett Nulph, subject to the access

easement. In December 2011, Nulph deeded the property to ELN Holdings, LLC.

Sometime in 2009 or 2010, Nulph1 began the process for developing Lot 1 into a dental

clinic. In 2010, Nulph filed an application to rezone from a residential property (R-1) to a

business property (B-1), specifically, a professional office. Nulph hired Brockway, Opfer,

Raab Architecture (BORArchitecture) to design his dental clinic with the assistance of

HLA Engineering and Surveying (HLA). A site plan submitted with the rezoning

application identified the existing 22-foot easement and an existing 8.75-foot shared

1 As Nulph acted on behalf of ELN Holdings, with regard to the actions at issue, we refer to both as Nulph.

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asphalt access driveway, as well as landscaping in part of the easement space. The

City distributed notices of rezoning to all “owners within 500 feet”; no objections were

filed. In November 2010, the Yakima Planning Commission recommended approval of

Nulph’s request to rezone, specifically finding that public utilities such as fire protection

and Yakima police were available to the property. Subsequently, the Yakima City

Council approved Nulph’s application to rezone and his development plan.

Next, HLA prepared a Grading and Site Utility Plan for Nulph’s new dental clinic.

The City approved the Grading and Site Utility Plan in July 2012. According to Nulph,

sometime during the planning phase, he and Kenneth Adams met to discuss re-paving

the access driveway. Kenneth acknowledges he agreed to split payment, and Columbia

Asphalt & Gravel invoiced Nulph for paving the shared “Nulph/Adams Driveway.” In

December 2012, the City issued a Certificate of Occupancy to ELN Holdings LLC for the

new dental clinic.

In 2017, the Adamses filed a complaint alleging trespass of the easement due to

Nulph’s improvements, including landscaping and curbing, which “encroach across the

entire length of the 22 foot Easement reducing the width of the 22 Foot Easement down

to 8.6 feet,” and claiming that this encroachment prevents the Adamses from “full use of

their driveway access within the legally entitled 22 foot Easement.” The Adamses

sought removal of the curbing and landscaping as well as damages. Nulph filed an

answer in April 2017 and asserted various affirmative defenses, including equitable

estoppel and mutual recognition and acquiescence.

The clerk for Yakima County Superior Court issued three Notices of Dismissal for

Want of Prosecution in May 2018, February 2020, and again in June 2022, which each

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required the parties to take an action of record and file a status report explaining why

the case was inactive. 2

In October 2023, Nulph and the Adamses filed cross-motions for summary

judgment. Nulph sought dismissal of the Adamses’ trespass claim, arguing it was an

improper claim under the law and was barred by statute of limitations, laches, mutual

agreement and acquiescence, and equitable estoppel. In their motion, the Adamses

sought “a court order finding the Defendants’ obstructions are infringing, creating

nuisance and trespassing on Plaintiff’s Easement and must be removed.” In response,

Nulph stated that his use of his property was reasonable and did not interfere with the

purpose of the parties’ easement and expressly stated that he was not arguing that the

easement be terminated.

Also in October 2023, the Adamses filed a motion to amend their complaint to

replace the trespass claim with a “[m]ore descriptive and accurate identification of [the]

cause of action” that Nulph’s “landscaping and installation of cement curbing constitute

unreasonable encroachment and interference with [the Adamses’] express access

Easement depriving [them] of over 13 feet of use and enjoyment of the Easement over

[Nulph’s] property.” The court granted the Adamses’ motion to amend in December

2023. Then, on September 17, 2024, the trial court denied the Adamses’ motion for

summary judgment and granted Nulph’s motion for summary judgment, dismissing all of

the Adamses’ claims.

2 Nulph asserts that the Adamses objected to the May 2018 order citing that discovery was ongoing and responded to the February 2020 order stating that his objection was an “action of record.” However, there are no documents in the record that indicate such objections or filings. After the notices of dismissal, the only pleading prior to the motions at issue on appeal that is included in the appellate record is the Adamses’ Note for Trial Setting and Initial Statement of Arbitrability filed in March 2020.

4 No. 87376-8-I/5

The Adamses timely appeal.

DISCUSSION

The Adamses challenge the trial court’s order granting Nulph’s motion for

summary judgment and denying their motion for summary judgment.3

We review orders granting summary judgment de novo. Keck v. Collins, 184

Wn.2d 358, 370, 357 P.3d 1080 (2015). We consider “the evidence and all reasonable

inferences from the evidence in the light most favorable to the nonmoving party.” Id.

When the parties file cross-motions for summary judgment we look at “the evidence in

the light most favorable to the nonmoving party with respect to the particular claim.”

West v. Wash. Dep’t of Fish & Wildlife, 21 Wn. App. 2d 435, 441, 506 P.3d 722 (2022).

Summary judgment is appropriate when “there is no genuine issue as to any material

fact,” meaning the moving party is entitled to judgment as a matter of law. CR 56(c). A

“material fact” is one that impacts the outcome of the litigation. Owen v. Burlington N. &

Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 1220 (2005). Further, there is a

genuine issue of material fact when “the evidence is sufficient for a reasonable jury to

return a verdict for the nonmoving party.” Keck, 184 Wn.2d at 370.

The party moving for summary judgment has the initial burden of showing the

absence of an issue of material fact. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225,

3 Nulph argues that the Adamses did not challenge “the trial court’s grant of summary judgment based upon findings that the 1978 Access Easement is a floating easement and that the servient estate owners use of the servient estate did not unreasonably or material interfere with the use of the access easement.” But the trial court did not enter such findings of fact. At summary judgment, trial courts do not enter findings of fact because it does not resolve factual disputes. Walker v. Wenatchee Valley Truck & Auto Outlet, Inc., 155 Wn. App. 199, 212, 229 P.3d 871 (2010). Further, if a trial court does enter findings of fact at summary judgment, those findings “ ‘are superfluous.’ ” Nelson v. Dep't of Labor & Indus., 198 Wn. App. 101, 109, 392 P.3d 1138 (2017) (quoting Concerned Coupeville Citizens v. Town of Coupeville, 62 Wn. App. 408, 413, 814 P.2d 243 (1991)). Therefore, Nulph’s argument that the Adamses did not challenge any findings of fact is unavailing.

5 No. 87376-8-I/6

770 P.2d 182 (1989). A defendant moving for summary judgment can submit affidavits

to demonstrate that no issue of material fact exists or can demonstrate to the trial court

that the plaintiff lacks competent evidence to support an essential element of their case.

Id. at 225-26. When the defendant-movant satisfies their initial burden, the burden then

shifts to the plaintiff. Id. at 225. The plaintiff must sufficiently demonstrate “ ‘the

existence of an element essential to [their] case, and on which [they] will bear the

burden of proof at trial.’ ” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.

Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). The failure to make such showing will result in

the trial court granting summary judgment. Id.

On appeal, the appellant must provide argument on the relevant issues. RAP

10.3(a)(6). At the time the Adamses filed their motion for summary judgment, their

complaint had not yet been amended. Therefore, their sole claim at that point was for

trespass. The Adamses’ briefing on appeal provides no argument or authority on the

law of trespass or its application to the facts in this case. When a party fails to address

issues in its briefing and provide legal authority, it waives the right to appeal that issue.

State v. Cox, 109 Wn. App. 937, 943, 38 P.3d 371 (2002). The trial court did not err in

denying the Adamses’ summary judgment motion on this record.

By contrast, Nulph’s motion for summary judgment sought dismissal of the

Adamses’ claim on several bases, including that Nulph’s site development and

improvements did not unreasonably interfere with the Adamses’ use of the easement

and their claims were barred by the statute of limitations, laches, mutual agreement and

acquiescence, and equitable estoppel. We may affirm on any basis that is supported by

the record. Bavand v. OneWest Bank, 196 Wn. App. 813, 825, 385 P.3d 233 (2016).

6 No. 87376-8-I/7

The Adamses present alternative arguments that the easement was terminated

by Nulph’s improvements, extinguished through adverse possession, or abandoned

through nonuse or mutual recognition. But we need not reach these arguments, as the

Adamses’ appellate briefing cites to various cases, but fails to engage with the law,

explain how it applies to this case, or provide citations to the record. Moreover, the

Adamses’ arguments are all directed at whether Nulph’s site developments eliminated

their easement rights, a claim that Nulph expressly disavows making. 4

By contrast, the trial court had briefing and declarations from both parties as to

whether Nulph’s site changes unreasonably interfered with the Adamses’ use of the

easement. We agree with Nulph that on this record, entry of summary judgment was

proper because the Adamses failed to present a question of fact that Nulph’s

improvements and landscaping unreasonably encroached and interfered with their use

and enjoyment of the access easement.

In general, a servient estate owner may use their property in any manner that

“does not interfere with the proper enjoyment of the easement.” Thompson v. Smith, 59

Wn.2d 397, 407-08, 367 P.2d 798 (1962); see also Zonnebloem, LLC v. Blue Bay

Holdings, LLC, 200 Wn. App. 178, 184, 401 P.3d 468 (2017) (servient estate owner

may “engage in reasonable conduct that affects access to the easement as long as that

conduct does not unreasonably interfere with the easement holder’s use”). Reasonable

4 Nulph specifically stated that he was not seeking to terminate the easement, and the trial court did not enter any termination order. As to the Adamses’ suggestion that the trial court’s grant of summary judgment “would establish the exclusive use, hostility and start the time running for the time element in establishing the necessary elements” of adverse possession, which “effectively extinguish[es] 13’6” ” of their easement, Nulph also notes he has never argued that the easement was extinguished by adverse possession and the trial court did not consider this issue at summary judgment. Finally, Nulph points out that he has never argued that there was a mutual recognition between parties acquiescing to reduce any part of the 22-foot easement.

7 No. 87376-8-I/8

use is a question of fact that is discerned from the “mode of use of the particular

easement.” Thompson, 59 Wn.2d at 408. The “reasonableness of a restraint depends

on a balancing of the necessity of the restraint for the protection of the servient estate

against the degree of interference with the easement holder’s use.” Zonnebloem, 200

Wn. App. at 184.

For example, in Thompson, there was an existing access easement between two

properties, which had never been used as a road. 59 Wn.2d at 402. The servient estate

owner constructed a road that was completely on their property and not within the

easement area. Id. at 400-03. Subsequently, the servient estate owner laid concrete on

part of the unused easement. Id. at 403. As there was no evidence that the section of

the easement where the concrete was laid had been used as a road, nor were there

future plans to use it as a road, the court concluded that the servient owner did not need

to remove the slab; however, if a future need to use the easement as a road developed,

they would need to remove the slab. Id. at 408-09.

Here, the purpose of the 22-foot easement was to grant the Adamses—as

dominant estate owners—access to their property. Nulph contends that his use of the

easement was not unreasonable and did not materially interfere with the Adamses’ use

of the easement because he preserved that access. Moreover, he claims he improved

the full width of the existing paved driveway—approximately 8.5 feet—and his other

improvements allow for an additional 5.5 feet of space to expand the driveway on the

south end.

Indeed, the Nulph/Adams easement is similar to the one in Thompson. There, an

established easement was not being used as a road, and here, only an approximately

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8.5-foot portion of the easement was paved and used to access the Adamses’ property.

Nulph’s developments preserved the portion being used as a paved driveway to access

the Adamses’ property.

The Adamses submitted a declaration from James C. Bell, a land surveyor, that

stated that his survey revealed that Nulph’s “concrete barrier and landscaping

encroach[ed] on the Easement by approximately 8 [feet].” Other than this conclusory

statement, Bell did not explain how this encroachment was unreasonable or interfered

with the Adamses’ use of the easement to access their property.

Dee Adams claimed in her declaration that Nulph’s asphalting and landscaping

“dangerously narrows the ingress and egress of the Easement,” to approximately 8’6,”

thereby physically limiting “emergency vehicles such as ambulances and fire trucks”

from accessing their property. The Adamses also stated that due to the curbing and

landscaping, delivery drivers could not deliver packages and on one occasion an

ambulance could not get to the house and Dee had to be carried down the driveway. In

particular, they claimed that the driveway was not in compliance with the Fire Apparatus

Access Road (FAAR) – checklist, which requires an unobstructed minimum width of 12

feet.

However, Nulph points out that the FAAR checklist for firefighter access applies

in unincorporated areas in Yakima County, not to properties within the city limits of

Yakima, including the Adams and Nulph properties. 5 Instead, the City has adopted the

International Fire Code (IFC). 6 See Yakima Municipal Code 10.05.010 (adopting 2021

5 According to the Yakima County Fire Marshal’s Office, FAAR applies to an “access way or easement that provides access to two or more addressable structures or units that is not included in the County Road Network” and requires “a minimum unobstructed width of 12 [feet].” 6 Int’l Code Council, International Fire Code (2021), https://codes.iccsafe.org/content/IFC2021P2

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Washington State Fire Code as maintained in Chapter 51-54A WAC); WAC 51-54A-003

(adopting the 2021 IFC). The Adamses’ property complies with the IFC requirement that

a building be within 400 feet of a fire hydrant, as it is approximately 356 feet from the

farthest point of their property to a fire hydrant.7 Further, Harlan Peterson, a retired

firefighter, attested that the “paved driveway is sufficient in width and construction to

allow a fire truck appropriate access to the back property (Adamses’ lot),” and that “the

curbing does not interfere with access” because the curb was “approximately 8’6” to 8’8”

which is sufficient width for a fire truck” and “the road surface is well maintained.”8

The record also contains evidence from Jacob Grant, a manager for an

emergency medical services provider in the City and County of Yakima, who stated that

“[a]ccess to the Adams Property is over paved driveway that is sufficient width and

construction to allow ambulance access to the back property (Adamses’ lot),” and

specifically noted that the distance between the curbing was “sufficient for ambulance

access.” Grant also noted that there were adjacent properties, including a library

parking lot that served as “an alternative location for provision of emergency medical

and fire services available to the Adams property.” Thus, the evidence before the trial

court shows that the curbing and landscaping improvements did not unreasonably

interfere with the Adamses’ use of the access easement because it was wide enough

for emergency fire and medical vehicles to enter, per local regulations.

Other evidence that was before the trial court further supports that Nulph’s

curbing and landscaping does not unreasonably interfere with the Adamses’ use of their

7 IFC Section 507.5.1. 8 Further, Peterson explained that to his knowledge, the County of Yakima adopted the FAAR standard but the City of Yakima (City) had not and was governed instead by City regulations.

10 No. 87376-8-I/11

access easement. For example, in approving Nulph’s application to rezone his lot, the

Yakima Planning Commission noted that “[a]ll required public utilities (sewer, water,

irrigation, street lighting, and fire hydrants) are presently available on the property.” The

Planning Commission also noted that rezoning did not “present any adverse

consequences for adjacent jurisdictions or service providers.” Additionally, Nulph’s

architect and surveyor both stated that the City Engineer reviewed the Grading & Site

Utility Plan, which depicted the easement and the areas to be improved, including re-

paving, landscaping, and curbing, for compliance with local regulations and approved

the plan.

Finally, Nulph met with Kenneth Adams on several occasions between the start

of construction in 2011 and the end of construction in 2012 to discuss re-paving the

access driveway. Kenneth stated that he “agreed to pay for half of the cost of asphalting

the roadway on [their] Easement,” and also paid to asphalt the eastern section of their

own property. Kenneth also stated that Nulph asked him to sign “something which [he]

understood was an acknowledgment that [he] did not object to [Nulph’s] proposed

zoning change for [Nulph’s] lot and an agreement to share the expense of asphalting”

the access roadway on the easement, but that “it was not [his] understanding that [he]

was in any way giving up a portion of [his] Easement rights.” After paving was complete,

Columbia Asphalt & Gravel issued an invoice to Nulph for the shared “Nulph/Adams

Driveway.” The Adamses’ agreement to repave the 8.5-foot section of the easement

further supports that Nulph’s improvements to that section of the easement were

reasonable and did not interfere with their use of the easement.

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Viewing the evidence in the summary judgment record in the light most favorable

to the Adamses as the nonmoving party, we conclude that there is no genuine issue of

material fact as to whether Nulph’s use of his property unreasonably interferes with their

use of the access driveway. The trial court did not err by granting Nulph’s motion for

summary judgment dismissing the Adamses’ claims.

Affirmed.

WE CONCUR: