Womack v. Von Rardon

133 Wash. App. 254
CourtCourt of Appeals of Washington
DecidedMay 25, 2006
DocketNo. 24221-8-III
StatusPublished
Cited by31 cases

This text of 133 Wash. App. 254 (Womack v. Von Rardon) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Womack v. Von Rardon, 133 Wash. App. 254 (Wash. Ct. App. 2006).

Opinion

[257]*257¶1 Bernadette Womack received a $5,000 general damages award for emotional distress in a default judgment against Rusty Rardon, his parents, and Jayson Anderson due to the malicious burning of her cat, Max, and her son’s harassment. Ms. Womack appeals unopposed, contending the trial court improperly measured her damages and dismissed her private nuisance, outrage, and statutory waste claims. The Animal Legal Defense Fund, amicus, joins in the measure of damages claim. We affirm except for the judgment interest rate and, in doing so, hold a new action and remedy for malicious injury to a pet exists in Washington State.

Brown, J.

FACTS

¶2 Late on July 20, 2003, Rusty Rardon, Jason Brumback, and Jayson Anderson took Max from Ms. Womack’s front porch to a nearby school and using gasoline set him on fire. Max suffered first, second, and third degree burns. The cat was soon euthanized. In juvenile court, Rusty and Jason were ordered to pay restitution for animal cruelty to a Spokane animal care organization. Both boys were ordered to have no contact with the Womacks but violated that order.

¶3 Ms. Womack sued Rusty, Jason, and their parents for 16 liability claims with alternatives (see note 1 for claims surviving summary judgments). Ms. Womack alleged emotional distress because of Max’s abuse and her son’s harassment by Rusty and Jason. Ms. Womack sought economic, noneconomic, and special damages for each claim except for statutory waste, where she claimed “treble intrinsic” damages, costs, and attorney fees. Clerk’s Papers (CP) at 216. The prayer for relief on each claim specified “subject to proof and modification at trial.” CP at 216-17.

[258]*258¶4 The Rardons defaulted. The Brumbacks successfully-asked for summary dismissal for 9 of the 16 claims, including private nuisance, statutory waste, and outrage.1 Later, the Brumbacks settled and were dismissed with prejudice. Later still, Mr. Anderson’s role was discovered and he was added as a defendant in a second amended complaint. Finally, Mr. Anderson defaulted.

¶5 In February 2005, the trial court rejected Ms. Womack’s proposed default papers, writing “I am not in a position to enter a Judgment, or Findings of Fact and Conclusions of Law that run contrary to my previous orders relating to causes of action for which relief cannot be granted.” CP at 239. The court set a March date to determine “if the relief requested, i.e., the damages have supporting documentation.” Id. We do not know what occurred on the March date set by the court.

¶6 In May 2005, the court entered a document entitled “Findings of Fact and Conclusions of Law and Judgment Summary.” CP at 253. The court adopted “by reference” certain paragraphs of the second amended, but unverified, complaint to establish jurisdiction, parties, venue, and general allegations.2 Id. The document does not specify the claims supporting liability, but the court found in “Other” findings the events resulted in Ms. Womack’s suffering “feelings of guilt, loss and grief, causing her sleepless nights and depressive periods.” Id. at 254. Further, the court found Ms. Womack temporarily required medication partly due to the described events.

[259]*259¶7 The court concluded Ms. Womack’s “claims for unliquidated damages were subject to an evidentiary hearing which included the plaintiffs testimony on April 27, 2005.” Id. at 254. The court partly reasoned, “[a]lthough Max was a beloved family pet providing comfort and companionship to the Womack family, market value can be established for similarly situated two-year-old tomcats who also provide similar comfort and companionship to their owners.” Id. The court concluded Ms. Womack’s “unliquidated claims for damages” included statutory attorney fees and costs and set amounts not disputed here. Id. at 255. Finally, the court concluded Ms. Womack’s “claims for unliquidated damages” based on the “[v]alue of Max and Bernadette Womack’s emotional distress; [were] $5,000.00.” Id.

¶8 The judgment summary restated the statutory attorney fees and costs, then specified “Unliquidated Damages[:] $5,000.00.” Id. at 255. Without explanation, postjudgment interest was set at 3.198 percent. Ms. Womack’s appeal is unopposed.

ANALYSIS

A. Summary Judgments

¶9 The issue is whether the trial court erred in granting summary judgment dismissal of Ms. Womack’s private nuisance, tort outrage, and statutory waste claims.

¶10 We review summary judgment orders de novo, engaging in the same inquiry as the trial court. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000). Summary judgment is proper if, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party, no genuine material fact issue exists and the movant is entitled to judgment as a matter of law. CR 56(c); Ellis, 142 Wn.2d at 458.

¶11 It is the appellant’s responsibility to provide the necessary record. Allemeier v. Univ. of Wash., 42 Wn. [260]*260App. 465, 472-73, 712 P.2d 306 (1985); RAP 9.2(b). The failure to provide a necessary record undermines our means to properly review the alleged errors. In this unopposed appeal, we are limited by the record before us.

¶12 First, we analyze Ms. Womack’s private nuisance claim. “Nuisance is ‘a substantial and unreasonable interference with the use and enjoyment of land.’ ” Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P.3d 1089 (2005) (quoting 1 William H. Rodgers, Jr., Environmental Law § 2.2, at 33 (1986)). RCW 7.48.120 defines nuisance as “unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others ... or in any way renders other persons insecure in life, or in the use of property.” “A nuisance ‘which affects equally the rights of an entire community or neighborhood’ is a public nuisance.” Grundy, 155 Wn.2d at 6-7 (quoting RCW 7.48.130). All other nuisances are private. RCW 7.48.150.

f 13 To be actionable, the nuisance must be “ ‘injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property.’ ” Grundy, 155 Wn.2d at 7 (quoting RCW 7.48.010). “Such action must be brought by any person whose property is . . . injuriously affected or whose personal enjoyment is lessened by the nuisance.” RCW 7.48.020.

¶14 Here, Ms. Womack suffered a loss, but not a loss related to land or property fixed to the land.

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Bluebook (online)
133 Wash. App. 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/womack-v-von-rardon-washctapp-2006.