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May 24, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
LISA LAVINGTON, a single woman, No. 54541-1-II
Appellant,
v. PUBLISHED OPINION
JAMES T. HILLIER and WANDA L. HILLIER, husband and wife; and RAY PARSONS CONSTRUCTION, LLC, a Washington limited liability company and general contractor, Washington Contractor Registration No. RAYPAPC922D7,
Respondents.
MAXA, J. — Lisa Lavington appeals the trial court’s orders dismissing her unjust
enrichment and intentional trespass claims against James and Wendy Hillier and Ray Parsons
Construction, LLC (Parsons). Lavington’s claims arose from the Hilliers’ and their contractor
Parsons’ use without permission of a driveway on her property to access a construction site on
the Hilliers’ property.
We hold that the trial court did not err in (1) granting summary judgment in favor of the
Hilliers and Parsons on Lavington’s unjust enrichment claim, (2) excluding evidence of trespass
on a road right-of-way that was not a part of Lavington’s property, and (3) granting a directed
verdict and dismissing the intentional trespass claim against Parsons under CR 41(b)(3).
However, we hold that the trial court erred in (1) excluding any evidence of emotional distress For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
damages as a discovery sanction without considering the Burnet1 factors, (2) limiting
Lavington’s recoverable damages to the lesser of the cost of restoring any property damage and
the diminution in value of the property, and (3) dismissing the intentional trespass claim against
the Hilliers under CR 41(b)(3).
Accordingly, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
FACTS
Background
The Hilliers owned property adjacent to Lavington’s property. James Hillier 2 and
Lavington are cousins, and their properties once were part of the same plat of land owned by
James’s and Lavington’s grandfather. Historically, the Hilliers used a driveway on Lavington’s
property to access their property. However, the Hilliers also had a second access to their
property on the other end of their lot.
In 2013 or 2014, the Hilliers were considering building a house on their property. James
asked Lavington if she would grant him a formal easement of her driveway. Lavington denied
the request.
In November 2014, the Hilliers began construction of a house on their property and hired
Parsons as their general contractor. James told Parsons to use Lavington’s driveway as needed
for access in order to save money on construction costs. When Lavington discovered that
Parsons was using her driveway, she spoke to the foreman of the construction crew and told him
1 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). 2 For clarity, James and Wendy Hillier with be referred to jointly as the Hilliers, and they will be referred to by their first names when referred to individually. No disrespect is intended.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
that they did not have permission to use her property. Parsons stopped using Lavington’s
driveway.
Lavington filed a complaint against the Hilliers and Parsons for intentional trespass and
unjust enrichment, alleging that Parsons had damaged her property when using the driveway to
access the Hilliers’ construction site.3 She alleged that she had suffered damages, including
emotional distress.
Partial Summary Judgment on Unjust Enrichment Claim
The Hilliers and Parsons jointly moved for partial summary judgment dismissal of
Lavington’s unjust enrichment claim. They argued that Lavington had no evidence that she
conferred a benefit on the Hilliers or Parsons or that the benefit came at Lavington’s expense. In
response, Lavington argued that the Hilliers and Parsons received a valuable benefit by using her
driveway because they were able to avoid additional costs associated with using the other
entrance to the Hilliers’ lot.
During Lavington’s deposition, she had acknowledged that she did not give anything to
Hillier that benefited him. But she stated that the Hilliers received a benefit from using the
driveway because they saved money on construction costs. Scott Babbit, Lavington’s expert,
submitted a declaration in which he estimated that the Hilliers would have had to spend an extra
$80,000 dollars had they not used Lavington’s driveway for access.
3 Lavington also alleged claims for equitable estoppel, quiet title, and injunctive relief. The trial court dismissed the equitable estoppel and injunctive relief claims on directed verdict but found that Lavington was entitled to a decree quieting title. Lavington did not appeal the dismissal of the claims for equitable estoppel and injunctive relief.
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The trial court granted the motion for partial summary judgment, dismissing Lavington’s
unjust enrichment claim with prejudice. The trial court stated that it could not find that
Lavington actually gave anything to the Hilliers.
Lavington’s Medical Records
The Hilliers requested production of Lavington’s medical records, including mental
health records, because she claimed emotional distress damages. Although Lavington originally
provided an authorization to access her records, she withdrew the authorization because she
chose to prove her damages without using her medical records. The trial court granted the
Hilliers’ motion to compel production of Lavington’s medical records and ordered Lavington to
execute a stipulation for the Hilliers and Parsons to obtain her mental health records.
Lavington did not allow the Hilliers and Parsons to obtain her medical records as the trial
court ordered. Therefore, the Hilliers and Parsons filed motions in limine to exclude any
evidence of her alleged emotional distress. The trial court granted Parsons’ motion and
precluded Lavington from claiming emotional distress damages. In reaching its decision, the
trial court did not address the Burnet factors. Instead, the court merely ruled that it was
precluding Lavington’s emotional distress damages because Lavington did not produce her
medical records as the court had ordered.
Evidence of Trespass on Road Right-of-Way
The Hilliers and Parsons jointly filed a motion in limine to exclude evidence of trespass
on property that was not owned by Lavington. They argued that most, if not all, of the land on
which they allegedly trespassed was within the right of way of the adjoining highway, not on
Lavington’s property. The Hilliers and Parsons produced a quit claim deed from February 10,
2014 that described Lavington’s parcel as
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
All that portion of the following described tract of land in Government Lot four (4), Section thirty-five (35), Township twenty-two (22) North, Range three (3) West, W.M., which lies Northerly of the Northerly right-of-way line of State Highway No. 106 (Navy Yard Highway).
Clerk’s Papers (CP) at 577 (emphasis added).
Dan Holman, a land surveyor, provided a declaration in support of the Hilliers’ motion.
He attached to his declaration the original deed from 1923, which described a right-of-way for
state road known as the Navy Yard Highway (now known as State Route 106) that was 60-feet
wide. However, starting in 1941, the deeds described what became of Lavington’s property as
laying “Northerly of the Northerly right-of-way line” of the Navy Yard Highway. E.g., CP at 515.
Based on his review of the deeds, Holman determined that Lavington’s parcel was north of the
northerly right-of-way line of SR 106.
In response, Lavington argued that the State had only an easement over the right-of-way
and that she owned the underlying fee simple interest from the centerline of the highway.
The trial court granted the Hilliers’ and Parsons’ motion to exclude evidence of trespass
on the road right-of-way because Lavington did not own that property.
Motion in Limine Regarding Trespass Damages
Parsons moved in limine to limit the measure of Lavington’s damages to the lesser of the
cost of restoring any damage to the property or the diminution in value the trespass caused.
Similarly, the Hilliers moved in limine to exclude testimony from Lavington’s expert, who was
prepared to testify regarding his opinion of the rental value the Hilliers should have paid to use
Lavington’s driveway. The trial court granted the motion regarding the measure of damages, and
excluded the expert’s testimony because it did not relate to either restoration costs or diminution
in value.
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Bench Trial and Involuntary Dismissal
The parties proceeded to a bench trial on Lavington’s intentional trespass claim.
Lavington and James Hillier testified to the background facts stated above.
Lavington acknowledged that, before the construction, there was a family
accommodation allowing the Hilliers to use the driveway to access their property. But she
believed this did not extend to others. Lavington admitted that she only ever saw one
construction truck use her driveway. She did not know how many trucks used her driveway or
how big those trucks were.
Lavington stated that there was a change in grade of her driveway at the property line, the
driveway was widened to accommodate construction vehicles, and crushed rock was spread on
the driveway. She also stated that some trees were broken and that vine maples along her
property line looked more sparse. However, almost all of the damage to trees Lavington
identified occurred within the highway right-of-way. She could identify only one tree with a
broken branch that was not in the right-of-way.
James testified that the Lavington and Hillier families were on good terms and that his
family would use Lavington’s driveway with no objection. James stated that he told Parsons that
they could use the driveway as needed.
After Lavington presented her case in chief, the Hilliers and Parsons jointly moved for
dismissal of Lavington’s intentional trespass claim under CR 41(b)(3). The trial court granted
the motion for dismissal regarding both parties and entered findings of fact and conclusions of
law. The reason for the dismissal of the claim against the Hilliers was that Lavington did not
prove that she suffered actual and substantial damages from the trespass. The reason for the
dismissal of the claim against Parsons was that Parsons did not intentionally trespass on
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
Lavington’s driveway because James directed Parsons to use the driveway based on the
historical accommodation.
Lavington appeals the dismissal on summary judgment of her unjust enrichment claim,
the exclusion of evidence of trespass on the road right of way, the exclusion of evidence of
emotional distress damages as a discovery sanction, the exclusion of evidence regarding the
rental value of the use of her driveway, and the dismissal of her intentional trespass claims.
ANALYSIS
A. UNJUST ENRICHMENT
Lavington argues that the trial court erred in dismissing her unjust enrichment claim
against the Hilliers on summary judgment because she presented genuine issues of material fact
on all elements of the claim. We disagree.
1. Standard of Review
We review summary judgment orders de novo. Sartin v. Estate of McPike, 15 Wn. App.
2d 163, 172, 475 P.3d 522 (2020), review denied, 196 Wn.2d 1046 (2021). We view all the
evidence and apply reasonable inferences in the light most favorable to the nonmoving party. Id.
Summary judgment is appropriate only when there are no genuine issues of material fact. Id. A
genuine issue of material fact exists “when reasonable minds could disagree on the facts
controlling the outcome of the litigation.” Id.
2. Requirement that Plaintiff Confer a Benefit
Unjust enrichment represents a type of implied contract between the plaintiff and the
defendant. Young v. Young, 164 Wn.2d 477, 483-84, 191 P.3d 1258 (2008). The cause of action
allows a plaintiff to recover for the value of a benefit the defendant retained even though there is
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
no formal contractual relationship, based on equity and fairness. Id. at 484. In such situations,
the law dictates that a quasi-contract exists between the parties. Id.
The Supreme Court in Young recognized that the first element of unjust enrichment was
that the plaintiff confer a benefit on the defendant. Id. The court then stated the first element
more generally in reciting the three elements: “(1) the defendant receives a benefit, (2) the
received benefit is at the plaintiff’s expense, and (3) the circumstances make it unjust for the
defendant to retain the benefit without payment.” Id. at 484-85 (emphasis added).
Here, there is no question that the Hilliers received a benefit. However, Young and
multiple Court of Appeals cases state that a plaintiff must confer a benefit on the defendant to
satisfy the first element of unjust enrichment. Young, 164 Wn.2d at 484; e.g., Samra v. Singh, 15
Wn. App. 2d 823, 837, 479 P.3d 713 (2020); Bircumshaw v. Wash. State Health Care Auth., 194
Wn. App. 176, 205, 380 P.3d 524 (2016); Austin v. Ettl, 171 Wn. App. 82, 92, 286 P.3d 85
(2012). As the court stated in Bircumshaw, “Unjust enrichment is a basis for recovering the
value of a benefit conferred on another party in the absence of a contractual relationship.” 194
Wn. App. at 205 (emphasis added).
Requiring that the plaintiff confer a benefit on the defendant to recover for unjust
enrichment is consistent with the contractual basis of the theory discussed in Young. 164 Wn.2d
at 483-84. The defendant must receive a benefit from the plaintiff for an implied contract to
arise.
Lavington argues that the Hilliers received a benefit because they saved on construction
costs by using her driveway. However, it is undisputed that Lavington did not confer any benefit
on the Hilliers or on Parsons. They simply took the benefit. Therefore, as a matter of law
Lavington could not satisfy the first element of unjust enrichment.
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We hold that the trial court did not err in dismissing Lavington’s unjust enrichment claim
on summary judgment.
B. EXCLUSION OF EVIDENCE REGARDING TRESPASS WITHIN RIGHT-OF-WAY
Lavington argues that the trial court erred in determining that her property did not include
the fee interest underlying the State’s right-of-way and excluding evidence of trespass within the
right-of-way. We disagree.
Lavington relies on the “highway presumption” to argue that she owned a fee interest to
the centerline of the state highway adjacent to her property. The highway presumption states that
“the conveyance of land bounded by or along a highway carries title to the center of the highway
unless there is something in the deed or surrounding circumstances showing an intent to the
contrary.” Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 575, 716 P.2d 855 (1986)).
Whether fee interest extends to the center of the highway depends on the particular
circumstances of each case. Christian v. Purdy, 60 Wn. App. 798, 801, 808 P.2d 164 (1991).
For example, if the provisions in the deed describe a property that extends up to but does not
include the right of way, the highway presumption is rebutted. Northlake Marine Works, Inc. v.
City of Seattle, 70 Wn. App. 491, 500, 857 P.2d 283 (1993).
Here, the legal description of Lavington’s property states,
All that portion of the following described tract of land in Government Lot four (4), Section thirty five (35), Township twenty two (22) North, Range three (3) West, W.M., which lies Northerly of the Northerly right-of-way line of Primary State Highway No. 106 (Navy Yard Highway).
CP at 577. The plain language of this legal description does not include fee interest to the center
of the highway because it identifies Lavington’s property as north of the northern right-of-way
line. This language shows an intent that is contrary to the presumption that her property extends
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to the center of the highway. See Roeder, 105 Wn.2d at 575. Therefore, the highway
presumption is rebutted under the facts of this case.
Lavington’s deeds contain language that clearly set her property boundary as north of the
northern right-of-way line of the state highway. Therefore, we hold that the trial court did not err
when it determined that Lavington’s property did not include the fee interest underlying the
State’s right-of-way and excluded evidence of any damage within the right-of-way.
C. PRECLUSION OF EMOTIONAL DISTRESS CLAIM
Lavington argues that the trial court erred in precluding her from claiming emotional
distress damages as a sanction for her refusal to produce her medical records in discovery
because the trial court did not consider the Burnet factors. The Hilliers do not dispute that the
trial court erred, but they argue that the error was harmless because Lavington’s failure to show
actual and substantial physical damage to her property meant that she could not recover
emotional distress damages. We hold that the trial court erred and that the error was not
harmless because Lavington can recover emotional distress damages for intentional trespass even
in the absence of physical damage to her property.
1. Legal Principles
Under CR 37(b)(2), the trial court has discretion to impose sanctions against a party who
fails to comply with a discovery order. Available sanctions include preventing a noncomplying
party from supporting a claim. CR 37(b)(2)(B). CR 37(d) also allows the trial court to impose
the sanctions allowed under CR 37(b)(2) for the failure of a party to respond to interrogatories or
requests for production. Magaña v. Hyundai Motor Am., 167 Wn.2d 570, 584, 220 P.3d 191
(2009). The trial court generally should impose the least severe sanction that will adequately
serve the purposes of sanctions, which are to compensate the harmed party, deter, punish, and
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
educate the wrongdoer, and ensure that the wrongdoer does not profit from the wrong. Barton v.
Dep’t of Transp., 178 Wn.2d 193, 215, 308 P.3d 597 (2013).
Before a trial court can impose one of the “harsher remedies” for a discovery violation
under CR 37(b), it must explicitly consider the Burnet factors: (1) whether the violation was
willful or deliberate, (2) whether the violation substantially prejudiced the opposing party’s
ability to prepare for trial, and (3) whether lesser sanctions probably would suffice. Jones v. City
of Seattle, 179 Wn.2d 322, 338, 314 P.3d 380 (2013). The “harsher remedies” include those
sanctions described in CR 37(b)(2). Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 688, 132 P.3d
115 (2006). The trial court must make express findings regarding the Burnet factors on the
record. Teter v. Deck, 174 Wn.2d 207, 217, 274 P.3d 336 (2012).
2. Required Production of Mental Health Records
Initially, Lavington argues that the trial court erred in ordering her to allow the Hilliers
and Parsons to obtain her medical records pursuant to discovery requests. We disagree.
CR 26 provides for broad discovery from the opposing party. Magaña, 167 Wn.2d at
584. Information is discoverable even if inadmissible at trial if it “appears reasonably calculated
to lead to the discovery of admissible evidence.” CR 26(b)(1).
Here, Lavington argues that she did not need to produce her medical records because she
elected not to rely on medical evidence at trial to prove her emotional distress claim. But she
ignores the fact that the Hilliers and Parsons could use her medical records to defend against her
emotional distress claim. And her medical records clearly had the capacity to lead to the
discovery of admissible evidence regardless of whether the records themselves were admissible.
We hold that the trial court did not err in ordering Lavington to allow the Hilliers and
Parsons to obtain her medical records.
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3. Failure to Consider Burnet Factors
The trial court stated that it was not allowing Lavington to claim emotional distress
damages because she did not produce her medical records as ordered by the court. The trial
court did not consider the Burnet factors on the record before precluding Lavington’s emotional
distress claim, as the law clearly requires. Therefore, we hold that the trial court erred in
precluding Lavington’s emotional distress claim as a discovery sanction.
4. Harmless Error
A trial court’s failure to properly consider the Burnet factors is subject to a harmless error
analysis. See Jones, 179 Wn.2d at 356. Under the harmless error test in civil cases, an error is
harmless when it does not materially affect the outcome of the trial. Needham v. Dreyer, 11 Wn.
App. 2d 479, 497, 454 P.3d 136 (2019).
The Hilliers argue that the trial court’s error was harmless. They claim that Lavington
could not recover emotional distress damages for their intentional trespass because she could not
show actual and substantial physical damage to her property. We disagree.
a. Legal Principles – Trespass
A trespass is “ ‘any intentional invasion of the plaintiff’s interest in the exclusive
possession of property.’ ” Bradley v. Am. Smelting & Refining Co., 104 Wn.2d 677, 685, 709
P.2d 782 (1985) (quoting W. ROGERS, ENVIRONMENTAL LAW § 2.13 at 154-57 (1977)).
“ ‘One is subject to liability to another for trespass, irrespective of whether he thereby causes
harm to any legally protected interest of the other, if he intentionally (a) enters land in the
possession of the other.’ ” Bradley, 104 Wn.2d at 681 (quoting RESTATEMENT (SECOND) OF
TORTS § 158 (AM. LAW. INST. 1965)).
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The Supreme Court in Bradley identified the elements of an intentional trespass claim.
104 Wn.2d at 692-93. The court stated that an intentional trespass occurs when the defendant’s
actions have “(1) invaded the plaintiff’s interest in the exclusive possession of his property, (2)
been committed intentionally, (3) been done with the knowledge and reasonable foreseeability
that the act would disturb the plaintiffs’ possession, and (4) caused actual and substantial
damages.” Id.
The court elaborated on the fourth element:
While at common law any trespass entitled a landowner to recover nominal or punitive damages for the invasion of his property, such a rule is not appropriate under the circumstances before us. . . . The elements that we have adopted for an action in trespass . . . require that a plaintiff has suffered actual and substantial damages. Since this is an element of the action, the plaintiff who cannot show that actual and substantial damages have been suffered should be subject to dismissal of his cause upon a motion for summary judgment.
Id. at 691-92.
The fourth element as stated in Bradley unequivocally required actual and substantial
damages, plural. Id. at 691-93. The term “damages” refers to compensation a person can
recover in a lawsuit for an injury or a loss. Ellingson v. Spokane Mortg. Co., 19 Wn. App. 48,
57, 573 P.2d 389 (1978); see also BLACK’S LAW DICTIONARY 488 (11th ed. 2019). In contrast,
the term “damage” generally refers to some physical harm to a person or property. BLACK’S
LAW DICTIONARY 488.
However, when discussing a continuing trespass, the court in Bradley referred both to
damage to property and to compensatory damages: “Assuming that a defendant has caused actual
and substantial damage to a plaintiff’s property, the trespass continues until the intruding
substance is removed. If such is the case, and damages can be proved, as required, actions may
be brought for uncompensated injury.” Bradley, 104 Wn.2d at 693. Later in the same
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
paragraph, the court stated that it had ruled that “actual and substantial damages are required.”
Id.
As in Bradley, after stating the damages element in the plural, this court in Wallace v.
Lewis County stated that a claim for continuing intentional trespass required “actual and
substantial harm to [a] person’s property.” 134 Wn. App. 1, 15, 137 P.3d 101 (2006); see also
Crystal Lotus Enterprises, Ltd. v. City of Shoreline, 167 Wn. App. 501, 506, 274 P.3d 1054
(2012). This court in Grundy v. Brack Family Trust initially referred to the damages element in
the plural, requiring actual and substantial damages. 151 Wn. App. 557, 567, 213 P.3d 619
(2009). But then the court dropped the “s” and stated that “a person must cause ‘actual and
substantial damage[ ]’ to the property of another” to recover for trespass. Id. at 568 (alteration in
original) (quoting Wallace, 134 Wn. App. at 15).
b. Liability Without Physical Damage
The cases are somewhat confusing. But we conclude based on Bradley and the
Restatement (Second) of Torts that the fourth element of an intentional trespass claim is actual
and substantial damages, not some physical damage to the plaintiff’s property.
The court in Bradley stated four times that actual and substantial damages was an
element of trespass and only referenced damage to property in the context of a continuing
trespass while again referring to damages. Bradley, 104 Wn.2d at 692-93. Almost all the cases
since Bradley, including Wallace, Grundy and Crystal Lotus Enterprises, have stated that the
fourth element of trespass is actual and substantial damages. See Ofuasia v. Smurr, 198 Wn.
App. 133, 149, 392 P.3d 1148 (2017); Hurley v. Port Blakely Tree Farms L.P., 182 Wn. App.
753, 772, 332 P.3d 469 (2014).
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In addition, as stated above, Bradley quoted § 158 of the Restatement (Second) of Torts,
which states that liability exists for an intentional entry into land in the possession of another
“irrespective of whether he thereby causes harm to any legally protected interest of the other.”
Bradley, 104 Wn.2d at 681. And the court later quoted from comment d to § 821D of the
Restatement, which distinguishes between trespass and private nuisance: “For an intentional
trespass, there is liability without harm; for a private nuisance, there is no liability without
significant harm. In trespass an intentional invasion of the plaintiff's possession is of itself a tort,
and liability follows.” Bradley, 104 Wn.2d at 689 (emphasis added).
Further, §163 of the Restatement states, “One who intentionally enters land in the
possession of another is subject to liability to the possessor for a trespass, although his presence
on the land causes no harm to the land, its possessor, or to any thing or person in whose security
the possessor has a legally protected interest.” (Emphasis added.) A comment to § 163 states:
“The wrong for which a remedy is given under the rule stated in this Section consists of an
interference with the possessor’s interest in excluding others from the land. Consequently, even
a harmless entry or remaining, if intentional, is a trespass.” RESTATEMENT § 163 cmt. d
(emphasis added); see also Davis v. Westphal, 389 Mont. 251, 259, 405 P.3d 73 (2017) (stating
that “[b]ecause the legal harm is the interference with another’s right to exclusive possession of
property, an unauthorized tangible presence on the property of another constitutes a trespass
regardless of whether the intrusion caused any other harm”).
Because trespass liability can exist without some physical damage to the property, there
is no reason that emotional distress cannot constitute actual and substantial damages. And the
general rule is that a plaintiff can recover damages for emotional distress resulting from an
intentional tort like trespass. See Birchler v. Castello Land Co., 133 Wn.2d 106, 115-16, 942
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P.2d 968 (1997). If emotional distress damages are recoverable in a trespass action, they
necessarily can constitute actual and substantial damages.
We conclude that if Lavington can sustain her burden of proof, emotional distress
damages can constitute actual and substantial damages sufficient to support an intentional
trespass claim. And this means that the trial court’s error in precluding Lavington’s emotional
distress claim was not harmless.
5. Summary
We hold that (1) the trial court did not err in ordering Lavington to produce her medical
records, (2) the trial court did err in precluding Lavington’s emotional distress damages without
considering the Burnet factors on the record, and (3) that error was not harmless because
emotional distress damages can constitute actual and substantial damages, thereby satisfying the
fourth element of intentional trespass if proved. We emphasize that on remand if Lavington
again defies the court order and refuses to produce her medical records, the trial court again can
assess whether precluding Lavington’s emotional distress claim would be an appropriate
sanction – after considering the Burnet factors on the record.
D. DAMAGES RECOVERABLE FOR INTENTIONAL TRESPASS
Lavington argues that the trial court erred by limiting her recoverable damages to the
lesser of the cost of restoring any property damage and the diminution in value of the property.
We agree.
The rule that an injured person is entitled to recover the lesser of the cost of restoration or
the diminution in value applies to physical damage to personal or real property. See Thompson v.
King Feed & Nutrition Serv., Inc., 153 Wn.2d 447, 454-59, 105 P.3d 378 (2005). However, no
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case states that this is the only measure of damages allowed for an intentional trespass onto
another’s property. Physical damage to property is only one aspect of a trespass.
“ ‘[T]he very essence of the nature of property is the right to its exclusive use.’ ”
Holmquist v. King County, 192 Wn. App. 551, 561, 368 P.3d 234 (2016) (quoting Olwell v. Nye
& Nissen Co., 26 Wn.2d 282, 286, 173 P.2d 652 (1946)). As a result, property owners are
entitled to compensation for the loss of their right to exclusive use and possession of their
property. Holmquist, 192 Wn. App. at 562. For example, trespass plaintiffs may be able to
recover loss of use damages for a temporary invasion of their property. Olympic Pipe Line Co. v.
Thoeny, 124 Wn. App. 381, 393-94, 101 P.3d 430 (2004). The court in Holmquist noted that
“courts assess damages for even minimal interference with an owner’s right of exclusive use and
possession.” 192 Wn. App. at 562.
The one limitation, as noted above, is that the plaintiff must prove actual and substantial
damages. Bradley, 104 Wn.2d at 693. Therefore, nominal damages generally are not allowed
for an intentional trespass claim. Id. at 691-92.
The specific issue in this case is Lavington’s argument that she should have been allowed
to present evidence of the fair rental value of the use of her driveway to prove damages for
intentional trespass. She relies on Holmquist, where the court approved allowing trespass
plaintiffs to quantify their damages using the rental value of the property at issue. 192 Wn. App.
at 562-565. But in Holmquist, the trespass was akin to a long-term partial occupation of the
property – the defendant’s actions allowed the plaintiffs’ private property to be used as a public
beach. Id. at 554-55. That case does not support the proposition that rental value can be a proper
measure of damages in all trespass cases, and specifically when a defendant drives across the
plaintiff’s property for a period of time.
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We do not decide here whether rental value evidence is admissible under the facts of this
case because the trial court excluded this evidence based on an erroneous assumption that
Lavington’s damages were limited to the lesser of restoration costs and diminution in value. On
remand, the trial court will have to decide the issue of admissibility in light of our damages
discussion above.
E. DISMISSAL OF INTENTIONAL TRESPASS CLAIM
Lavington argues that the trial court erred in dismissing the intentional trespass claims
against the Hilliers and Parsons under CR 41(b)(3). We agree with regard to the Hilliers but
disagree regarding Parsons.
A trial court may grant a motion to dismiss at the close of the plaintiff’s case under CR
41(b)(3). Dismissal is proper where the evidence or reasonable inferences therefrom supports a
verdict for the plaintiff. Commonwealth Real Estate Servs. v. Padilla, 149 Wn. App. 757, 762,
205 P.3d 937 (2009). In reviewing a dismissal based on CR 41(b)(3), “we review de novo
whether the plaintiff presented a prima facie case, viewing the evidence in the light most
favorable to the plaintiff.” Rufin v. City of Seattle, 199 Wn. App. 348, 357, 398 P.3d 1237
(2017).
2. Claim Against the Hilliers
The trial court dismissed the intentional trespass claims against the Hilliers because
Lavington failed to present any evidence of actual and substantial damages. However, as
discussed above, the trial court erroneously precluded Lavington from presenting evidence
regarding her alleged emotional distress and any damages apart from physical injury to her
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
property. Therefore, until Lavington is allowed to present such evidence, it is unknown whether
she will be able to show actual and substantial damages.
We hold that the trial court erred in dismissing the intentional trespass claim against the
Hilliers under CR 41(b)(3).
3. Claim Against Parsons
The trial court dismissed the intentional trespass claims against Parsons on the grounds
that Parsons did not intentionally trespass on Lavington’s property because James Hillier
directed Parsons to use Lavington’s driveway.
As noted above, one element of an intentional trespass is that the defendant knew with
reasonable foreseeability that their intentional act will result in intrusion of the plaintiff’s interest
in exclusive possession. Bradley, 104 Wn.2d at 692-93. In other words, the defendant must be
“substantially certain that the trespass would result from his intentional actions.” Grundy, 151
Wn. App. at 569.
There was no evidence presented at trial to show that Parsons knew that he was
trespassing. Lavington presented testimony that James told Parsons to use the driveway as
needed. Lavington also testified herself that, when she approached Parsons’ foreman, he stated
that he did not know he was not allowed to use the driveway. Further, Lavington testified that
the construction traffic stopped immediately after she confronted Parsons’ foreman. Because
Parsons believed he had permission to use the driveway, he could not have been “substantially
certain that the trespass would result from his intentional actions.” Grundy, 151 Wn. App. at
569.
Therefore, we hold that that the trial court did not err in dismissing Lavington’s
intentional trespass claim against Parsons under CR 41(b)(3).
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
CONCLUSION
We affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion.
MAXA, J.
I concur:
WORSWICK, P.J.
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
LEE, J. — (Concurring in part/dissenting in part) I concur with the majority that the trial
court did not err in (1) granting summary judgment in favor of James and Wendy Hilliers and Ray
Parsons Construction, LLC (Parsons) on Lisa Lavington’s unjust enrichment, (2) excluding
evidence of trespass on a road right-of-way that was not part of Lavington’s property, and (3)
granting a directed verdict and dismissing the intentional trespass claim against Parsons under CR
41(b)(3). However, I respectfully disagree with the majority on the intentional trespass claim
against the Hilliers. I would hold that the trial court did not err in dismissing the intentional
trespass claim against the Hilliers under CR 41(b)(3) because Lavington failed to show actual and
substantial damage to her property, and the actual basis upon which Lavington appeals fails.
Further, because evidence of emotional distress damages does not establish liability for intentional
trespass, the trial court’s exclusion of emotional distress damages as a discovery sanction without
considering the Burnet4 factors was harmless error. Also, because Lavington’s intentional trespass
claim fails, the issue relating to the trial court’s exclusion of Lavington’s evidence of the fair rental
value of the land to show damages for intentional trespass is moot.
A. INTENTIONAL TRESPASS
I agree with the majority that, in Bradley, the Supreme Court held that to establish
intentional trespass, a plaintiff must show that the defendant’s actions have “(1) invaded the
plaintiff’s interest in the exclusive possession of his property, (2) been committed intentionally,
(3) been done with the knowledge and reasonable foreseeability that the act would disturb the
plaintiffs’ possession, and (4) caused actual and substantial damages.” Bradley v. American
Smelting & Refining Co., 104 Wn.2d 677, 692-93, 709 P.2d 782 (1985). In establishing these
4 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997).
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
elements for intentional trespass, Bradley expressly accepted and approved of the elements set
forth by Borland, which stated that:
“[A] plaintiff must show 1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiff’s possessory interest; and 4) substantial damages to the res.”
Bradley, 104 Wn.2d at 691 (emphasis in original) (quoting Borland v. Sanders Lead Co.,
369 So.2d 523, 529 (Ala. 1979).
The requirement that there be actual and substantial damages to property is the crux of my
disagreement with the majority. The majority confuses damage or damages to the property of
another that is necessary to prove liability with the recovery of damages once liability is
established.
The majority posits that in determining liability for intentional trespass, a plaintiff can
prove actual and substantial damages without any showing of physical harm to the property, and
instead, can prove liability by showing any type of damage, including only emotional damages.
To support its position, the majority relies on Bradley’s quote of the Restatement (Second) of Torts
§ 158 (1965). Majority Opinion at 13. However, Bradley used the quoted language in a discussion
of the scope and meaning of the requisite intent needed to show intentional trespass, not in a
discussion of actual and substantial damages. Bradley, 104 Wn.2d at 681-82.
The majority also relies on a comment to Restatement (Second) of Torts § 812D; a comment
to Restatement § 163; and a Montana case to support its position. Majority Opinion at 15-16.
Bradley cited to, without adopting, the sources relied on by the majority in the court’s discussion
as to whether an intentional deposit of microscopic particulates onto a person’s property gives rise
to a cause of action for intentional trespass as well as nuisance. I do not find the legal support
relied on by the majority persuasive.
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
A careful reading of Washington case law shows that the actual and substantial damages
element of intentional trespass requires a showing that there be actual and substantial damages to
the property. To emphasize, Bradley specifically adopted the following elements of trespass set
forth in Borland to recover in trespass:
“[A] plaintiff must show 1) an invasion affecting an interest in the exclusive possession of his property; 2) an intentional doing of the act which results in the invasion; 3) reasonable foreseeability that the act done could result in an invasion of plaintiff’s possessory interest; and 4) substantial damages to the res.”
Bradley, 104 Wn.2d at 691 (emphasis in original) (quoting Borland, 369 So.2d at 529). The
requirement that there be “damages to the res” has not changed. See also Crystal Lotus Enterprises
Ltd. v. City of Shoreline, 167 Wn. App. 501, 506, 274 P.3d 1054 (2012) (intentional trespass
requires “actual and substantial harm to that person’s property.”); Grundy v. Brack Family Trust,
151 Wn. App. 557, 568, 213 P.3d 619 (2009) (An intentional trespass requires actual and
substantial damage “to the property of another”), review denied, 168 Wn.2d 1007 (2010); Wallace
v. Lewis County, 134 Wn. App. 1, 15, 137 P.3d 101 (2006) (intentional trespass requires “actual
and substantial harm to that person’s property”).5
Here, we are not dealing with the intentional deposit upon property of microscopic
particulates that are undetectable by the human senses as was the case in Bradley. And the only
evidence of damage to the property that was not in the road right-of-way was one tree with a broken
5 Our Supreme Court has held that emotional distress damages can be recovered upon a showing of liability for an intentional tort, not as the basis to find liability. See Cagle v. Burns and Roe, Inc., 106 Wn.2d 911, 916, 726 P.2d 434 (1986) (In response to a certified question from a federal court as to whether emotional distress damages can be recovered upon showing of liability for the intentional tort of wrongful termination in violation of public policy, the court stated that “[t]his court has liberally construed damages for emotional distress as being available merely upon proof of ‘an intentional tort’” (quoting Cherberg v. People’s Nat’l Bank, 88 Wn.2d 595, 602, 564 P.2d 1137 (1977))).
23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
branch. This can hardly be characterized as actual and substantial damage to the property sufficient
to sustain liability for an intentional trespass claim.
Also, Lavington acknowledges that, in the order relating to the Hilliers, the trial court found
that in her case in chief, Lavington “did not prove that she had suffered actual and substantial
damages.” Clerk’s Papers at 1008. Lavington admits that the evidence presented at trial supported
a finding of no actual and substantial damage in the absence of any other reversible errors. Also,
Lavington did not challenge this finding in the order relating to the Hilliers. Therefore, the trial
court’s finding that Lavington did not suffer actual and substantial damages is a verity on appeal.
See Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217 (2015) (“Unchallenged findings of
fact are verities on appeal.”).
B. ACTUAL BASIS OF LAVINGTON’S APPEAL
On appeal, Lavington only argues that the trial court erred by dismissing her intentional
trespass claim against the Hilliers based on “family accommodation.” Br. of Appellant at 38.
However, Lavington admits that the trial court made no findings or conclusions regarding “family
accommodation” in its written findings of fact and conclusions of law relating to the Hilliers. Br.
of Appellant at 38. Therefore, Lavington’s challenge to the trial court’s dismissal of the intentional
trespass claim should fail because the actual basis of her appeal is unsupportable.
A cause of action for intentional trespass requires a plaintiff to show actual and substantial
damages to the property. The evidence at trial did not show that Lavington suffered actual and
substantial damage to her property. Also, Lavington admits, and does not challenge the trial
court’s finding, that the evidence at trial did not support any finding that she suffered actual or
substantial damages. Finally, Lavington’s challenge on appeal was based on the trial court’s
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 54541-1-II
alleged dismissal based on “family accommodation,” which Lavington now admits there are no
findings or conclusions relating to “family accommodation.” Therefore, I would hold that
Lavington has failed to show that the trial court erred in dismissing her intentional trespass claim
against the Hilliers.
Because evidence of emotional distress damages does not establish liability for intentional
trespass, the trial court’s exclusion of emotional distress damages as a discovery sanction without
considering the Burnet factors was harmless error. Also, because Lavington’s intentional trespass
claim fails, the issue relating to the trial court’s exclusion of Lavington’s evidence of the fair rental
value of the land to show damages for intentional trespass is moot. Accordingly, I would affirm
the trial court’s order dismissing Lavington’s claims.
Lee, J.