Lane v. Skamania County

265 P.3d 156
Court of Appeals of Washington·Decided October 25, 2011·No. 40667-5-II·Published·Cited by 7 cases

Opinion

265 P.3d 156 (2011)
164 Wash.App. 490

Dennis LANE and Elizabth Lane, husband and wife, Respondents,
v.
SKAMANIA COUNTY, a municipal corporation; and Lawrence L'Hommedieu and Jane Doe L'Hommedieu, husband and wife, Appellants.

No. 40667-5-II.

Court of Appeals of Washington, Division 2.

October 25, 2011.

*157 Lawrence L'Hommedieu (Appearing Pro Se), Washougal, WA, for Appellants.

*158 Joseph Vance, Miller Nash LLP, Vancouver, WA, for Respondents.

VAN DEREN, J.

¶ 1 Lawrence and Shelane L'Hommedieu[1] appeal pro se from the trial court's denial of their CR 13(e) motion to supplement their pleadings. In January 2010, after trial, and after we issued a mandate terminating review of the underlying 2003 land use petition act (LUPA)[2] case, the L'Hommedieus moved to add a counterclaim to that case alleging that Dennis and Elizabeth Lane wrongfully filed a lis pendens on the L'Hommedieus' property in 2006. The L'Hommedieus argue that the trial court abused its discretion in denying their motion to file a counterclaim in the 2003 case because (1) it erred in applying CR 13(f) instead of CR 13(e) to their after-arising counterclaim and (2) their counterclaim did not mature under CR 13(e) until they prevailed in the 2003 action in which the lis pendens was filed.[3] We agree that CR 13(e) applied to the L'Hommedieus' counterclaim but we hold that the trial court did not abuse its discretion in denying their motion in 2010 to assert a counterclaim relating to the lis pendens filed in 2006, more than three years after the counterclaim matured, more than three years after the 2007 trial, and after our mandate issued on the second appeal in 2010. Therefore, we affirm.

FACTS

¶ 2 On March 26, 2003, the Lanes petitioned for review under LUPA, seeking, in part, to enforce a restrictive covenant and to permanently enjoin the L'Hommedieus from installing an additional septic system while constructing a second house on their property.[4] On June 10, the trial court granted a temporary restraining order enjoining the L'Hommedieus' installation of the septic system. The trial court entered a preliminary injunction enjoining further work on the septic system on June 26. The L'Hommedieus filed an answer to the Lanes' action on July 23. The trial court granted partial summary judgment in favor of the L'Hommedieus on the restrictive covenant issue, ruling that no material issues of fact existed and that the covenant was not enforceable against them and quashing its preliminary injunction.

¶ 3 The Lanes appealed the trial court's decision granting partial summary judgment to the L'Hommedieus and quashing the preliminary injunction and, in our unpublished 2005 opinion, we reversed and remanded to the trial court because material issues of fact existed. Lane v. Skamania County, noted at 128 Wash.App. 1063, 2005 WL 1847180, at *8. After remand, on June 14, 2006, the Lanes filed a lis pendens against the L'Hommedieus' property. At a bench trial, the L'Hommedieus argued that they were entitled to damages and attorney fees because the Lanes wrongfully enjoined the installation of the septic system. But they did not claim that they were entitled to damages or attorney fees based on a wrongfully filed lis pendens.

¶ 4 After a bench trial concluded on February 28, 2007, the trial court generally made factual findings mitigating enforcement of the covenant against the L'Hommedieus. It also found that the Lanes had not brought their suit in "bad faith" and that the L'Hommedieus had not suffered "substantial damages" from the preliminary injunction. Clerk's Papers (CP) at 370. It concluded that the covenant did not apply to the L'Hommedieus' property and septic system and denied the Lanes' request for a permanent injunction. But it also concluded that the Lanes wrongfully enjoined the L'Hommedieus and awarded the L'Hommedieus' attorney fees "incurred in quashing the preliminary injunction." CP at 371. It entered judgment on May 31, 2007.

*159 ¶ 5 In the second appeal to this court, we affirmed the trial court's conclusion that the covenant did not apply to the L'Hommedieus, but we reversed the award of attorney fees arising from quashing the preliminary injunction, holding that the trial court could not award attorney fees when it found the Lanes did not act in bad faith. Lane v. Skamania County, noted at 149 Wash.App. 1017, 2009 WL 597283, at *3-4.

¶ 6 We issued a mandate in the second appeal on January 12, 2010. On January 21, the L'Hommedieus moved in the trial court under CR 13(e) to supplement their pleadings to assert a counterclaim alleging that (1) in June 2006, they had listed their home for sale with a real estate agent; (2) under Washington law, an action seeking to enforce a covenant is not an action affecting title to real property; (3) they were entitled to damages arising from the Lanes' wrongful filing of a lis pendens against their property in 2006;[5] and (4) under the lis pendens statute, RCW 4.28.328(3), their counterclaim did not mature until they obtained a judgment in their favor and we mandated the case following the second appeal.

¶ 7 In denying the L'Hommedieus' motion, the trial court orally ruled that the L'Hommedieus' motion arose under CR 13(f) and that they failed to demonstrate "any oversight, inadvertence, or excusable neglect" in failing to file their counterclaim "as soon as the lis pendens was filed [or] shortly thereafter." Report of Proceedings at 15. The L'Hommedieus unsuccessfully moved for reconsideration. They now appeal.

ANALYSIS

¶ 8 The L'Hommedieus argue that the trial court erred in relying on CR 13(f) to deny leave to plead their lis pendens counterclaim because their counterclaim arose after they filed their answer and, thus, CR 13(e) applied. The Lanes contend that the trial court correctly denied leave to assert the counterclaim under either rule. We agree that the trial court did not abuse its discretion in denying the L'Hommedieus motion to amend their pleadings.

I. CR 13(e) and CR 13(f)

¶ 9 We review the trial court's grant or denial of leave to amend or supplement the pleadings for abuse of discretion. Wilson v. Horsley, 137 Wash.2d 500, 505, 974 P.2d 316 (1999); Herron v. Tribune Publ'g Co., Inc., 108 Wash.2d 162, 169, 736 P.2d 249 (1987). "A trial court abuses its discretion when its decision `is manifestly unreasonable or based upon untenable grounds or reasons.'" Salas v. Hi-Tech Erectors, 168 Wash.2d 664, 668-69, 230 P.3d 583 (2010) (quoting State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997)).

¶ 10 We review the interpretation of court rules, a matter of law, de novo. Burt v. Dep't of Corr., 168 Wash.2d 828, 832, 231 P.3d 191 (2010). We apply the same principles when interpreting court rules that we apply when we interpret statutes. State v. Carson, 128 Wash.2d 805, 812, 912 P.2d 1016 (1996).

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Lane v. Skamania County, 265 P.3d 156 (Wash. Ct. App. 2011).

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