Filed Washington State Court of Appeals Division Two
April 21, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II WALLACE R. JOHNSON, as Trustee of the No. 52688-3-II 1994 WALLACE RAY JOHNSON and JOAN ANNETTE JOHNSON REVOCABLE LIVING TRUST,
Appellant,
v.
48TH COURT NW HOMEOWNERS UNPUBLISHED OPINION ASSOCIATION, a non-profit corporation and BERNARD MCAULEY and LINDA MCAULEY, husband and wife,
Respondent.
LEE, C.J. — Wallace Johnson appeals the superior court’s ruling granting Bernard and
Linda McAuley’s motion for summary judgment and dismissing Johnson’s claims with prejudice.
Johnson argues that (1) the doctrine of laches does not apply, (2) the existence of the allegedly
modular house and nonconforming barn is a continuing tort, (3) the McAuleys’ boarding of horses
is a nuisance per se, and (4) the McAuleys’ boarding of horses is a nuisance. Because the doctrine
of laches applies, we affirm.
FACTS
Johnson and the McAuleys are neighbors in a development that is governed by the 48th
Court NW Homeowners’ Association (HOA). The McAuleys built their home and barn between
1994 and 1995. Johnson purchased his property in 1995 and moved onto the property in 2007. No. 52688-3-II
The applicable covenants went into effect in July 1994. These stated, in relevant part:
Section 2. Residential Area Covenants A. Land Use and Building Type for Single-Family Residences: No structure shall be altered, erected, placed, or permitted to remain on any lot, other than one detached single-family dwelling not to exceed two (2) stories, and outbuildings which may include barns, shops, or other related outbuildings. All structures shall conform to the architectural scheme of the main dwelling on the lot. No mobile homes or modular homes will be allowed.
....
F. Nuisances: No noxious or offensive activity shall be carried out upon any lot, nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood.
K. Businesses: No type of businesses shall be conducted on any lot or within any dwelling or structure that is visible to the public view. No forms of advertising shall be allowed that are visible to the public view.
Clerk’s Papers (CP) at 25-27.
The HOA was formed in 2008. The HOA modified the covenants in 2013. These modified
covenants added to Section 2(A): “Any and all buildings constructed and completed prior to
August 26, 2008 will be permitted to remain on the lot as originally constructed.” CP at 67.
Johnson was the president of the HOA from 2008-2012. In 2012, Johnson was voted out
as President of the HOA.
In October 2012, Johnson confronted Bernard1 about his modular home being in violation
of the covenants. Johnson also believed the McAuleys were operating a horse boarding business
in violation of the covenants. When Johnson was President of the HOA from 2008 to 2012, he
1 Because two parties share the same last name, first names will be used for clarity. No disrespect is intended.
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never took official action on behalf of the HOA against the McAuleys’ home or barn or the
McAuleys’ use of the barn.
In May 2013, after he had been voted out as President of the HOA, Johnson began to send
letters to the McAuleys and the HOA Board about the McAuleys’ alleged violation of Section 2(K)
of the covenants by running a horse-boarding business on their property. One letter stated that the
horse boarding was a nuisance because there was increased traffic from “horse owners coming to
pick up and return horses,” and because riders on horseback were in the street and cutting through
lots. CP at 47. The letter did not say that any horseback riders had cut through Johnson’s lot.
On September 17, 2013, the HOA held a meeting to determine whether the McAuleys were
violating the covenants. After hearing from Johnson and the McAuleys, six of the nine lot owners
stated that they did not believe that the McAuleys were violating the protective covenants, two
abstained, and Johnson did not vote at all.
The HOA held votes as to the McAuleys’ alleged covenant violations two more times in
2015 and 2016. Both times, the members voted that there were no covenant violations or
infractions.
On August 12, 2016, Johnson filed a complaint against both the HOA2 and the McAuleys
stating, in relevant part:
3.5. MCAULEY violated the protective covenants from the time they put a modular home on their property as their main dwelling, then subsequently constructed a barn on the property that does not conform to the architectural scheme of the main dwelling, then conducted a horse boarding business on the lot that is visible to public view.
3.12. MCAULEY has their property, modular home and barn listed for sale. If the nuisance is not abated prior to sale, the buyer of the MCAULEY property will be
2 These claims are not challenged on appeal.
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stepping into a problem that MCAULEY or the HOA should disclose to a potential purchaser.
3.15. Having the MCAULEY nuisance in the development causes a reduction in market value to the JOHNSON TRUST property and therefore caused damage to Plaintiff in an amount to be proven at trial.
4.5. Nuisance – RCW 7.48.120. MCAULEY operates a horse riding and boarding facility without permit and in violation of Thurston County Code 20.54; specifically 20.54.070(16)(b)(iii). Violation of a local zoning ordinance or land use code is a nuisance per se and is not permissible or excusable under any circumstance. The HOA has knowingly allowed and even supported McAuley in continuing this nuisance. This nuisance annoys, injures or endangers the comfort and repose of Plaintiff.
CP at 1-8. The McAuleys filed a motion for summary judgment to dismiss Johnson’s claims. The
McAuleys argued that Johnson’s claims were barred by the doctrine of laches and that the use of
their barn was neither commercial nor a nuisance.
A. JOHNSON’S CHALLENGE TO THE HOUSE AND BARN
The McAuleys purchased their property on October 13, 1994. Their home was built
between October 1994 and February 1995. Exterior wall panels, interior wall panels, roof trusses,
cabinets, doors, and millwork were constructed off-site. The house does have pre-fabricated walls.
The McAuleys claim the home is not modular.
The McAuleys’ barn was built on their lot from February 7, 1995 through March 16, 1995.
Bernard McAuley declared that “regular maintenance has been conducted on both the barn and the
residence,” but “there have been no substantial changes in design since the buildings were
completed.” CP at 342.
Johnson contends that the McAuleys’ home was modular because “[i]t is obvious to anyone
with knowledge of home construction . . . . I can tell that from my own observation.” CP at 79.
Johnson declared that he has continually tried to get the McAuleys to comply with the covenants
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since Johnson purchased his property. Johnson claims he told Bernard before the HOA was formed
in 2008 that the McAuleys’ home and barn were in violation of the protective covenants. When
Johnson confronted Bernard about the violation, Bernard stated that the protective covenants
“‘weren’t worth the paper they are written on.’” CP at 288. Johnson opined that the McAuleys’
nuisance caused a reduction in market value to the Johnson Trust property. Johnson also opined
that he has had a loss of value of his property from $100,000 to $150,000 at a minimum. And
Johnson stated that Pam Almaraz had to reduce the sales price of her property by over $100,000
due to the McAuleys’ violation of the covenants.
Pam Almaraz, another member of the HOA declared that the McAuleys’ barn did not
follow the architectural scheme of the house. Almaraz claimed that Bernard told her in 2000 that
he had to increase the size of his home “‘because of the covenants.’” CP at 314. According to
Almaraz, at a 2012 HOA meeting, it was apparent that there was not much regard for the covenants
among the homeowners.
In support of his summary judgment argument, Johnson provided the standard frame
package specifications that were used to build the McAuleys’ house. He also provided the
following definitions of modular homes: “Modular construction is a process in which a building
is constructed off-site, under controlled plant conditions, using the same materials and designing
to the same codes and standards as conventionally built facilities.” CP at 446. “[A modular home]
is a home constructed in a factory, away from your property, in a controlled environment and then
delivered to your job site. ‘Modular home’ is the most common term used, but they are also known
as—systems-built homes, factory-built and off-site construction.” CP at 448.
B. JOHNSON’S CHALLENGE TO HORSE BOARDING
The McAuleys kept four horses for other people, one per owner. Bernard declared that,
5 No. 52688-3-II
For most of the last twenty years, we have had one horse boarded in our barn which [was] always owned by a friend. However, we never had more than two horses we did not own boarded in the barn at any given time. Although we pooled costs with the other owners for grain, hay and other necessaries needed to care for the horses, the barn was never operated as a for-profit business. No advertising or signage was ever used, nor were any horses rented or events held on the premises.
CP at 342. Of the four people who kept their horses at the McAuleys’, two payed the
McAuleys $240 per month while the McAuleys provided all hay, grain, and other items, which
cost the McAuleys $910 per month. Two other people paid an amount based on costs of hay,
grain, and pellets. The McAuleys did not have a special use permit to keep the horses on their
property.
Johnson claimed that the business was visible to the public. On September 18, 2013,
pursuant to Johnson’s complaint alleging the McAuleys had an unpermitted barn structure and
commercial horse boarding business, Thurston County conducted a site review and found no
violations. The inspection also found that there had been a boarding business in the past, but not
currently.
On August 6, 2015, a second inspection by Thurston County was conducted based on a
complaint that the barn was not permitted and that the McAuleys were operating a commercial
horse-boarding business. The County found that the buildings were permitted and that no events
occurred on site. Specifically, the County found that the McCauleys “board 2 horses—1 = prop.
owners . . . no violations.” CP at 348.
C. SUPERIOR COURT RULING
On December 1, 2017, at the summary judgment hearing, the superior court ruled that there
was a laches problem. It also ruled that the nuisance per se claim failed on the merits. The superior
court dismissed Johnson’s claims against the McAuleys with prejudice.
Johnson appeals.
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ANALYSIS
A. STANDARD OF REVIEW
We review summary judgment orders de novo. Ranger Ins. Co. v. Pierce County, 164
Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is appropriate if, when viewing the
facts in the light most favorable to the nonmoving party, there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Michael v.
Mosquera-Lacy, 165 Wn.2d 595, 601, 200 P.3d 695 (2009). A genuine issue of material fact exists
when reasonable minds could reach different conclusions. Michael, 165 Wn.2d at 601. “Mere
allegations or conclusory statements of facts unsupported by evidence do not sufficiently establish
such a genuine issue.” Discover Bank v. Bridges, 154 Wn. App. 722, 727, 226 P.3d 191 (2010).
B. DOCTRINE OF LACHES
Johnson argues that the doctrine of laches was inappropriately applied in this case. The
McAuleys argue that Johnson had knowledge of the structures built on their property and
unreasonably delayed bringing a cause of action for more than 20 years. Additionally, the
McAuleys argue that they have been prejudiced by this delay because they have “improved their
property, maintained their property, and enjoyed their property for that entire period of time.” Br.
of Resp. at 10.
The doctrine of laches is “a creature of equity.” Rutter v. Rutter, 59 Wn.2d 781, 785, 370
P.2d 862 (1962). “Determining whether injury cognizable under the doctrine of laches occurs
depends on assessing the inherent equities of a particular case.” Brost v. L.A.N.D., Inc., 37 Wn.
App. 372, 376, 680 P.2d 453 (1984). The burden of proof is on the party asserting laches. Rutter,
59 Wn.2d at 785.
7 No. 52688-3-II
In Automotive United Trades Org v. State, 175 Wn.2d 537, 542, 286 P.3d 377 (2012), our
Supreme Court set forth the general elements of laches: “‘1) inexcusable delay and 2) prejudice to
the other party from such delay.’” (quoting State ex rel. Citizens Against Tolls v. Murphy, 151
Wn.2d 226, 241, 88 P.3d 375 (2004)). “Laches is an implied waiver arising from knowledge of
existing conditions and acquiescence in them.” Buell v. Bremerton, 80 Wn.2d 518, 522, 495 P.2d
1358, 1361 (1972). It arises from “neglect for an unreasonable length of time, under circumstances
permitting diligence to do what in law should have been done.” Arnold v. Melani, 75 Wn.2d 143,
147, 449 P.2d 800 (1968). See also Edison Oyster Co. v. Pioneer Oyster Co., 22 Wn.2d 616, 628,
157 P.2d 302 (1945). “Mere delay, lapse of time and acquiescence do not defeat the remedy unless
so long continued that in a particular case its changed condition would make it inequitable to allow
recovery.” McKnight v. Basilides, 19 Wn.2d 391, 401, 143 P.2d 307 (1943). “[T]he main
component of the doctrine is not so much the period of delay in bringing the action, but the
resulting prejudice and damage to others.” Clark County Public Utility Dist. No. 1 v. Wilkinson,
139 Wn.2d 840, 849, 991 P.2d 1161(2000) (citing Pierce v. King County, 62 Wn.2d 324, 332, 382
P.2d 628 (1963); Vance v. City of Seattle, 18 Wn. App. 418, 425, 569 P.2d 1194 (1977)).
Here, the McAuleys constructed their home in 1994 and 1995. They built the barn in 1995.
The Johnsons bought their property in 1995 and moved onto the property in 2007. Johnson stated
that he knew that the McAuleys’ home was modular because “[i]t is obvious to anyone with
knowledge of home construction.” CP at 79. He also stated he knew that horses were being
boarded because it was in public view. Johnson filed his complaint in 2016, more than twenty
years after he bought the lot.
Although Johnson claims he told Bernard before the HOA was formed in 2008 that he
believed the McAuleys’ home and barn violated the covenants, Johnson never took any official
8 No. 52688-3-II
action on behalf of the HOA against McAuleys with regard to the construction of their home or
barn or the use of the barn, even when he was the President of the HOA from 2008-2012. In fact,
the HOA modified the covenants in 2013 to allow the buildings on the McAuleys’ lot to remain as
constructed. Also, although Johnson claims he began to complain about the McAuleys’ to the
HOA in 2013, there is nothing in the record to show that Johnson took any action, or reasons why
he took no action, against the McAuleys for 18 years, from 1995, when Johnson bought his
property, to 2013. These facts show an inexcusable delay in bringing the cause of action.
The McAuleys lived in and enjoyed their home; were responsible for the cost of upkeep and
maintenance of their house and barn; and kept horses on their property for twenty years. The HOA
never brought any action against the McAuleys, and the McAuleys’ home is in compliance with the
modified HOA covenants. In assessing the inherent equities of this case, there is prejudice to the
McAuleys if Johnson is now allowed to continue in his suit after an unreasonable delay in bringing
this action. Therefore, we hold that the doctrine of laches applies, and that the superior court did not
err in granting summary judgment and dismissing Johnson’s claims.
ATTORNEY FEES
The McAuleys request attorney fees on appeal.
Under RAP 18.9(a), this court can award attorney fees for the filing of frivolous appeals.
An appeal is frivolous when the appeal presents no debatable issues on which reasonable minds
could differ and is so lacking in merit that there is no possibility of reversal. Stiles v. Kearney, 168
Wn. App. 250, 267, 277 P.3d 9, (citing Mahoney v. Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510
(1987)), review denied, 175 Wn.2d 1016 (2012). Here, we exercise our discretion and deny the
McAuleys’ request for attorney fees on appeal.
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We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J. I concur:
Cruser, J.
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WORSWICK, J. (dissenting) — Laches is an equitable defense courts apply to protect a
defendant from an unreasonable prejudicial delay. Rutter v. Rutter’s Estate, 59 Wn.2d 781, 784-
85, 370 P.2d 862 (1962); Clark Cty. Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wn.2d 840, 848-49,
991 P.2d 1161 (2000). Bernard and Linda McAuley, who assert the defense, have the burden of
proof. Newport Yacht Basin Ass'n of Condo. Owners v. Supreme Nw., Inc., 168 Wn. App. 56,
77, 277 P.3d 18 (2012). Because the McAuleys have failed to prove any damage caused by
Wallace Johnson’s unreasonable delay, I would reverse. Thus, I respectfully dissent.
Laches is an extraordinary remedy that is sparingly employed. Brost v. L.A.N.D., Inc., 37
Wn. App. 372, 376, 680 P.2d 453 (1984). To successfully employ the doctrine of laches, a
defendant is required to show three elements, one of which is damage or prejudice resulting from
the unreasonable delay. Lopp v. Peninsula Sch. Dist. No. 401, 90 Wn.2d 754, 759-60, 585 P.2d
801 (1978). Laches will not successfully bar a claim unless the defendant has proven that he has
so altered his position that it would be inequitable to enforce the claim. Rutter, 59 Wn.2d at 785.
Mere delay, lapse of time, and acquiescence are insufficient to establish laches. Rutter, 59
Wn.2d at 785.
Here, the McAuleys built their home and barn between 1994 and 1995. And although
Johnson purchased his property in 1995, he did not move onto the property until 2007. The
McAuleys do not claim as damages the cost of building their home and barn. They assert only
that they have been prejudiced by delay because they have “improved their property, maintained
their property, and enjoyed their property for that entire period of time.” Br. of Resp’t at 10.
The majority also cites the McAuleys’ boarding of horses as a type of prejudice. Majority at 9. I
fail to see how enjoyment of property can constitute damages or prejudice. Moreover, other than
standard maintenance, evidence of property improvements is missing from our record on appeal.
11 No. 52688-3-II
I agree that Johnson delayed an extraordinarily long time before bringing this suit. I also
find it troublesome that Johnson took no enforcement action against the McAuleys until after
Johnson was voted out as president of the 48th Court NW Homeowners Association. However, I
cannot agree that the damages or prejudice proven in this case sufficiently support a laches
defense. I would reverse.
______________________________ Worswick, J.