* Scott Warner And Ernest Warner, Appellants V Greg Hoover, Respondent

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XILED
COURT OF APPEALS
QIVISION II
2015 AUG 18 AM 9: 00
IN THE COURT OF APPEALS OF THE STATEWASHINGTON
f,E OF WASHINGTON
DIVISION II By -
4Ey
GREG HOOVER,
I No. 45742 -3 - II
consolidated with No. 46562 -1 - II)
Respondent,
V.
SCOTT WARNER and " JANE DOE"
WARNER, individually and the marital
community comprised thereof; ERNEST
WARNER and " JANE DOE" WARNER,
individually and the marital community
comprised thereof, and WARNER FARMS,
ORDER DENYING MOTION TO
RECONSIDER AND GRANTING MOTION
TO PUBLISH
WHEREAS, the appellants have filed a motion for reconsideration of the unpublished
opinion filed July 14, 2015, and
WHEREAS, third party Michael B. King filed a motion to publish the unpublished
opinion in this case that was filed on July 14, 2015, it is now
ORDERED, that the motion for reconsideration is denied. It is further
ORDERED, that the final paragraph, reading " 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 pursuant to RCW 2. 06. 040, it is so ordered." is deleted. It is further
ORDERED, that the, opinion will be published.
DATED this -- day of 41 2015.2015.
f1EF JUDGE --- --
 	 	 	 	 	 	 	 	 	 	 	 	 	

FILED
COURT OF APPEALS
I 1ViS} O fi TT
2015 JUL 14. AM 8: 57.
STATE OF WASHINGTON
y_. _ dl
l!Ty
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION H
GREG HOOVER,
Respondent,
0
SCOTT WARNER and " JANE DOE"
WARNER, individually and the marital
community comprised thereof; ERNEST
WARNER and " JANE DOE" WARNER,
individually and the marital community
comprised thereof, and WARNER FARMS,
No. 45742-3- 11
consolidated with No. 46562 -1 - II)
UNPUBLISHED OPINION
JOHANsoN, C.J. Scott and Ernest Warner appeal a trial court' s ruling finding them
liable for negligence, nuisance, and trespass after their road grading project caused damage to Greg
Hoover' s property by impeding the natural flow of surface and subsurface waters. The Warners
also appeal the permanent injunction entered in connection with the trial court' s ruling, the court' s
decision requiring them to desigri and implement a remediation plan, and the court' s award of fees
and sanctions in Hoover' s favor.
We hold that ( 1) substantial evidence supported each of the trial court' s critical findings of
fact, (2) the common enemy doctrine does not shield the Warners from liability because the " due
care" exception applies, ( 3) the trial court properly found the Warners liable for damages caused
 	 	 	 	 	 	 	 	 	 	 	 	 	

Consol. Nos. 45742 -3 -II / 46562 -1 - II
to Hoover, (4) the trial court abused its discretion by granting an overly broad injunction, (5) the
trial court did not abuse its discretion by awarding sanctions under CR 37( c), and ( 6) the Warners
have.waived any challenge to the remediation plan. Accordingly, we affirm in part and reverse in
i
FACTS
I. BACKGROUND
Hoover purchased 7. 5 acres of property in Yelm in 1999. Ernest'• owns a 20 -acre parcel
that borders the west and north sides. of Hoover' s property. Water naturally drains downward from
Hoover' s property onto Ernest' s property in a north by northwest direction, with some' of the water
draining across Hoover' s western -most boundary.
Before 2006, Hoover' s property did not suffer from " ponding" or standing -water
accumulation because of the natural composition of the surrounding soil. , The soil on Hoover' s
property comprises a permeable layer of organic material on top of an impermeable layer known
as " silt loam," which developed from sediment in a glacial lake bed. With soil such as Hoover' s,
water typically drains by flowing through the uppermost organic layers until it reaches the
impermeable silt loam, where it then travels in whichever direction is naturally sloped downward.
In 2006, the Warners commenced a development project on the portions of their property
abutting'Hoover' s. According to Hoover, the project involved the creation of a new road adjacent
to the western property line. Hoover understood that the Warners intended to clear the road as a
way to gain access to a segment of their property that the Warners intended to subdivide. Hoover
Where necessary we refer to Scott and Ernest Warner by their first names for clarity. We intend
no disrespect.
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
witnessed the Warners using dump trucks and heavy equipment to deposit and compact fill
material to form the road. Hoover believed that the Warners .knew that filling and grading that
area would result in adverse drainage consequences to Hoover' s property.
But according to the Warners, they transported no fill material into the area and they used
heavy equipment only to " blade" vegetation off an existing roadway. The Warners claimed that
they did nothing to change the grade on either the north or west property lines.
Shortly after the Warners completed their work, Hoover began to notice water collecting
on -his property. Hoover informed Scott that his property would not drain properly and requested
that Scott do something to alleviate the growing problem. Over the course of the next few years,
the Warners dug a series of ditches along the road to attempt to mitigate Hoover' s drainage issues.
While these ditches removed some of the pooling water, the Warners refused Hoover' s request to
dig additional ditches, citing their ineffectiveness. Instead, according to Hoover, the Warners
promised to remove the road.
Ultimately, however, the Warners declined to remove the road, in part because Hoover
complained to the Department of Ecology and the Department of Labor and Industries regarding
the Warners' projects. Meanwhile, Hoover' s, drainage problems worsened.
The saturated soil caused the well that served Hoover' s home to collapse and his septic
system to fail. The encroaching water cracked the foundation in -Hoover' s home and invaded his
crawl space. The water also reduced Hoover' s available space to graze his horses. Thurston
County then served Hoover with a violation notice after Scott complained that Hoover' s septic
tank failure caused waste to spill into roadside ditches.
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
In 2013, Hoover brought suit alleging several causes of action, including timber trespass,
statutory waste, nuisance, trespass, and negligence. Hoover also sought temporary and permanent
injunctive relief to preclude the Warners from continuing to impede his property' s ability to drain.
and to prevent ongoing damage.
II. PROCEDURE
Before trial, as the parties conducted discovery, the Warners responded to two requests for
admission from Hoover that are relevant to this appeal:
REQUEST FOR ADMISSION NO. 1: Admit that `in 2006 you or others under
your direction and control caused rock and fill material to be brought in from off
site and deposited at one or more locations within the area circled and labeled " A"
on attached Exhibit 1.
RESPONSE:
DENY
REQUEST FOR ADMISSION NO. 2: - Admit that in 2006 you or others under
your direction 'and control caused rock and fill material to be brought in from off
site and deposited at one or more locations within the area circled and labeled `B"
on attached Exhibit 1.
RESPONSE:
DENY
Clerk' s Papers ( CP) at 430- 31.
At trial; the court heard extensive testimony involving several critical issues. Among these
were the existence and use of fill material; the natural pattern of water flow between the two
properties; whether the Warners' grading work did in fact impede that natural flow to cause
Hoover' s drainage complications; the efficacy of existing remedial measures and the availability
of future remedial efforts; and what, if any, damages Hoover suffered.
A. USE OF FILL MATERIAL
As to the -use of fill material, Hoover explained that during the Warners' 2006 project, he
observed the Warners using dump trunks and heavy machinery to dump, spread, and compact an
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Consol. Nos. 45742- 3- 11/ 46562- 1- I1
extensive amount of foreign fill material along the western boundary of his property to create a
new road. In 2006, this new road raised the level of the ground as much as two feet. Hoover
estimated that he saw the Warners use as many as 30 to 50 dump truck loads of material for this
purpose.
Several of Hoover' s current and former neighbors corroborated his version of the events.
Scott Hyderkhan, who owned property north of Hoover' s in 2006, recalled witnessing the Warners
continuously" dump loads of large rock for what in his view was " hundreds of feet." 1 Report of
Proceedings ( RP) at 65. Linda Seamount, Hyderkhan' s girlfriend, also noticed Ernest dumping
truckloads of rocks and gravel. Likewise,.Jerry Hoover,2 another nearby property owner, saw the
Warners dumping fill dirt and rock in connection with the grading activity in 2006.
Other qualified witnesses also testified in support of Hoover' s allegations. Joseph Vincent
McClure, a structural engineer, opined that the road comprised recent fill. Similarly, Robert
Manns, a Thurston County land use compliance coordinator, explained that he observed two or
three feet of fill material, which he noticed because of the difference in height between the fill and
the natural ground: Finally, Lisa Palazzi, Hoover' s soil physics and hydrology expert, determined
that fill material had been deposited as part of the 2006 project on a " more -probable -than -not"
basis. 2 RP at 275.
But the Warners denied having brought fill material in, claiming instead that they were
simply performing maintenance work on an existing road.' William Halbert, the Warners' expert
2
Jerry Hoover is not related to Greg Hoover.
3 Later in trial, Ernest admitted that he remembered hauling some rock to cover a culvert. This
admission appears to relate to work performed on the north property boundary.
 	 	 	 	 	 	 	 	 	 	 	 	 	

Consol. Nos. 45742 -3 - II / 46562 -1 - II
hydrologist, acknowledged the presence of fill by digging several " test pits, but he opined that
the material existed in the subject locations for at least 20 years. In Halbert' s. view, the material
looked consistent with ground having been disturbed by " blading."
B. PROJECT' S IMPACT
As to the project' s impact, Halbert and Palazzi generally agreed that the direction of the
drainage and water flow is north and northwest across Hoover' s property, but they disagreed
regarding the extent of the impact that the Warners' grading project had on the otherwise natural
occurrence. According to Halbert, the material in the western road was highly permeable and .
would not have been compacted enough by the heavy machinery to obstruct natural drainage.
In Halbert' s view, it was not the Warners' proj ect that caused the ponding and other adverse
drainage issues. Instead, he opined that the source ofthe problem was overgrazing and compacting
of the. surrounding soil by Hoover' s several horses, a problem that could be remedied by
rip[ ping]" and revegetating the surrounding soil. 3 RP at 427. Halbert also believed that the
existing ditches appeared to be sufficiently deep to alleviate ponding problems.
Palazzi was of a different mind. She observed standing water on Hoover' s property and
opined that the 2006 fill material had blocked natural flow pathways. Palazzi explained further
that. compacting and " smearing" by the Warners' , heavy machinery exacerbated the drainage
issues. Specifically, Palazzi testified that the presence of additional fill and the accompanying
increased elevation impeded the surface water flow while the heavy machinery compaction
obstructed the subsurface flow. According to Palazzi, an engineering solution was necessary to
restore the normal drainage pathways because the existing ditches were not adequate to allow
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Consol. Nos. 45742.3 -II / 46562 -1 - II
water to drain west of Hoover' s property. Palazzi also suggested future monitoring as part of any
remedial effort.
Furthermore, Martha Carroll, from whom Hoover had purchased his properly, explained
that she had never experienced problems with standing water or flooding during her time living on
the property. During a recent visit to the property, she observed standing water and noticed that
the land had sunk " a lot." 2 R at 119. Carroll also remarked that the " berm" on the west side of
the property had not been there when she owned the home and that there was never a road on the
western property line.
C. RULING AND FINDINGS
Following trial, the court issued a letter ruling. The trial court concluded that it was
persuaded by a preponderance of the evidence that the Warners had brought in rock or other
material to perform significant work along the north and west boundaries of .Hoover' s property in
2006. The court acknowledged that because of the gentle slope of the land, even a slight impact
would have a " significant effect on the. flow of rainwater off the Hoover parcel." CP at 277.
The trial court also found that Hoover did not have considerable problems with standing
water until after the Warners' 2006 project and that Hoover' s adverse surface and subsurface
drainage situation starting immediately thereafter did not appear to be coincidental. Of the two
experts, the trial court found more credible Palazzi' s explanation that surface and subsurface water
flow from Hoover' s property to Ernest' s had been reduced or eliminated.
Regarding the Warners' assertion that they were shielded from liability by. the " common
enemy" doctrine, the trial court ruled that the Warners took no action to mitigate the damage until
Hoover brought it to their attention, at which point they dug, or. allowed Hoover himself to dig,
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Consol. Nos. 45742- 3. 11 / 46562- 1- 11
rudimentary ditches. The court considered the low level of utility of the project, the minimal
mitigation efforts, and the significant impact on Hoover to support its conclusion that the Warners'
actions were not reasonable and that they did not act in good faith and in a manner to avoid
unnecessary damage to Hoover' s property.
The trial court awarded Hoover $ 156, 000 representing the diminution in value of his
property, but it conditioned that award on the Warners' inability to remedy the damage. The court
permitted the Warners to purge the judgment by retaining a professional and designing a plan to
restore the drainage pathways. Additionally, the trial court awarded Hoover $25, 000 in general
damages, $ 12, 000 for repairs, and $60,000 for loss of use and enjoyment.
The trial court also awarded Hoover attorney fees under CR 37( c)— the rule that governs a
parry' s failure to admit the truth of a matter during discoverybecause the Warners denied using
fill materials in their responses to Hoover' s requests for admission. Moreover, the trial court
permanently enjoined the Warners from undertaking any further action to adversely affect the
drainage on Hoover' s properly.
The trial court entered findings offact and conclusions oflaw consistent with the foregoing. .
Ultimately, the court found the Warners liable on Hoover' s theories of negligence, nuisance, and
trespass.
In compliance with the trial court' s order, the Warners submitted a remediation plan, which
the court approved. But the trial court then imposed a requirement that the Warners regularly
inspect and maintain the drainage system— at least annually— to ensure its function. The parties
later stipulated to the success of the remediation plan. The Warners appeal.
 	 	 	 	 	 	 	 	 	 	 	 	 	

Consol. Nos. 45742- 3- 11 / 46562 -1 - II
ANALYSIS
I. SUBSTANTIAL EVIDENCE To SUPPORT THE TRIAL COURT' S FINDINGS of FACT
The Warners contend that substantial evidence does not support the trial court' s finding of
fact that water drained off the, surface of the Hoover parcel to the north or northwest prior to 2006.
The Warners assert further that substantial evidence does not support the trial court' s finding of
fact that subsurface water drained underground from the Hoover property to the Warner property.
We hold that substantial evidence supports each challenged finding because the evidence
demonstrates that a rational trier of fact could conclude that both surface and subsurface water
flowed as described.
We review a trial court' s findings of fact for substantial evidence to support the findings
and then determine whether those findings of fact support its conclusion' s of law. Scott' s
Excavating Vancouver, LLC v. WinlockProps., LLC, 176 Wn. App. 335, 341, 308 P. 3d 791( 2013),
review denied, 179 Wn.2d 1011 ( 2014). " Substantial evidence" is the quantum of evidence
sufficient to persuade a rational fair-minded person the premise is true." Sunnyside Valley
Irrigation Dist. v: Dickie, 149 Wn.2d 873, 879, 73 P. 3d 369 ( 2003).
We make all reasonable inferences from the facts in Hoover' s favor as the prevailing party
below. Scott' s Excavating, 176 Wn. App. at 342. We review the trial court' s conclusions of law
de novo. Scott' s Excavating, 176 Wn. App. at 342. We will not "disturb findings of fact supported
by substantial evidence even if there is conflicting evidence." Merriman V. Cokeley, 168 Wn.2d
627, 631, 230. P. 3d 162 ( 2010). And we defer to the•trial judge on issues of witness credibility and
persuasiveness. of the evidence. Boeing Co. v. Heidy, 147 Wn.2d 78, 87, 51 P.3d 793 ( 2002).
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Consol. Nos. 45742- 3- 11 / 46562- 1- 11
A. SURFACE WATER
The Warners challenge the trial court' s findings that surface and subsurface water drained
naturally from the north and northwest, across Hoover' s property and onto the Warners' property
before 2006. Regarding drainage of surface water, the Warners appear to challenge finding of fact
1. 4. Finding 1. 4 provides in pertinent part,
1. 4 Surface and sub -surface drainage .runs naturally across the Hoover
property to the north and northwest. From the time of his purchase until 2006,
Hoover did not have any problems with flooding of water gathering on his property.
CP at 429. The crux of the Warners' challenge is that the evidence does not support the finding
that surface water drains in this direction because Hoover did not actually see surface water
draining from his property to the Warners' property.
But experts who testified on behalf of both Hoover and the Warners agreed that water
naturally flowed across Hoover' s property in a north by northwest direction. And both Palazzi
and McClure, a structural engineer, spoke specifically to the fact that this- drainage pathway
includes surface waters. Specifically, according to McClure, " the vast majority ofthe flow on this
site would be on the surface." 2 RP at 159. Accordingly; a rational trier of fact could conclude
that water drained off the surface of the Hoover property to the north and the northwest and,
therefore, we hold that substantial evidence supports the-trial court' s finding.
B. SUBSURFACE WATER
The Warners also contend that because no party undertook an investigation specifically to
determine whether subsurface water traveled in the same direction as surface water, the trial court' s
causation findings regarding the subsurface.water flow are not supported by substantial evidence.
The relevant findings of fact are findings 1. 12 and 1. 13, which provide,
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
1. 12 The Warners' 2006 grading project altered and changed the
preexisting drainage in a manner that impeded the free flow of surface and
subsurface water off of Hoover' s property, causing water to collect on the.Hoover
property, where it did not collect before.
1. 13 These activities directly and proximately caused excessive moisture
conditions and ongoing damage to the Hoover property, including: damage to the
home foundation; failure of the septic system; failure of the well; and loss of use
and enjoyment of the property.
CP at 431.
But practically speaking, the Warners' assertion is essentially thatbecause there is no direct
evidence that subterranean water traveled north and west from Hoover' s property onto the
Warners' property, substantial evidence necessarily does not support the trial court' s finding to.
that extent. The Warners rely in part on Nejin `v. City ofSeattle, 40 Wn. App. 414, 698 P.2d 615
1985), to support their claim.
In Nejin, Valentina Nejin sued the city of Seattle for negligence alleging that a broken
sewer line in the vicinity of her property caused landslide damage. 40 Wn. App. at 415. But expert
testimony revealed that although excess watez from a broken sewer could cause landslides, the
effect of escaping water would be substantially diminished beyond 50 feet and the landslide
occurred 240 feet from the broken sewer. Nejin, 40 Wn. App. at 420. Moreover, experts testified
that the. landslide could have been caused by other soil problems. Nejin, 40 Wn. App. at 420.
Division One of this court reversed the trial court' s award of damages because although
the broken sewer pipe could theoretically have contributed to Nejin' s landslide, there was no direct
evidence that it had done so and, thus, a causation theory based on circumstantial evidence that the
broken sewer caused the damage was purely conjecture. Nejin, 40 Wn. App. at 421. And where
liability is premised on a theory of causation based on circumstantial evidence, no factual
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
determination may rest upon conjecture. Nejin, 40 Wn. App. at 420 ( citing Sanchez v. Haddix, 95
Wn.2d 593, 599, 627. P.2d 1312 ( 1981)).
Here, however, the experts agreed that water flowed downhill from Hoover' s property to
the Warnersproperty. There is no disagreement that Hoover' s property slopes to the north and
west and no dispute that water drains through the soil to reach -an impermeable layer and then
travels " downslope." Palazzi testified specifically regarding the need to restore the original
drainage pathways, including the subsurface pathways, towards the north and the northwest. In
Palazzi' s view, the 2006 grading project impacted both surface and subsurface drainage pathways.
From this evidence, a rational finder of fact could conclude that the asserted premise ( that
subsurface water flows in the same direction as the surface water) is true.
Furthermore, although Hoover may have relied on circumstantial evidence to establish that
the Warners' grading project impeded the flow of subsurface water from his property, such a theory
was not purely conjecture. It was the unequivocal opinion of an expert witness. Moreover, even
had the subsurface water from Hoover' s property drained in a direction away from the Warners'
property, substantial evidence would nevertheless support the trial court' s finding regarding the
grading project as the cause of Hoover' s standing water. This is so because Hoover has shown
that the obstruction of surface water alone supports such a finding. Accordingly, we hold that
substantial evidence supports the challenged findings.
II. COMMON ENEMY DOCTRINE
The Warners next argue that even if substantial evidence exists to support the trial court' s
finding that the grading project caused Hoover' s damage, the Warners are nevertheless absolved
from liability by virtue of the common enemy doctrine. Hoover responds that the common enemy
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Consol. Nos. 45742- 3- 11 / 46562- 1- T1.
doctrine does not shield the Warners from liability because the trial court correctly concluded that
the " due care" exception to the doctrine applied. We assume, as the parties and the trial court did,
that the common enemy doctrine applies here. And we agree with Hoover that the " due care"
exception to the doctrine applies.
In its strictest form, the common enemy doctrine allows landowners to dispose of
unwanted surface water in any way they see fit without liability for:resulting damage to one' s
neighbor." Currens v. Sleek, 138 Wn.2d 858, 861, 983 P. 2d 626, 993 P.2d 900 ( 1999). " The idea
is that ` surface water ... is regarded as an outlaw and a common enemy against which anyone
may defend himself, even though by so doing injury may result to others. "' Curren, 138 Wn.2d
at 861 ( alteration in original) (quoting Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 ( 1896)). However,
because a strict application of this rule is widely regarded as inequitable, our Supreme Court has
adopted exceptions to the common enemy doctrine over the years. Currens, 138 Wn.2d at 861-
62.
Although landowners may block the flow of diffuse surface water onto their land, the first
exception provides. that landowners may not inhibit 'the flow of a watercourse or a natural
drainway.4 Island County v. Mackie, 36 Wn. App. 385, 388, 675 P. 2d 607 ( 1984). Another
exception prevents landowners from collecting water and channeling it onto their neighbors' land.
Currens, 138 Wn.2d at 862 ( citing Wilber Dev.' Corp. v. Les Rowlands Constr. Inc., 83 Wn.2d 871,
4 We note that a viable argument could be .made that the Warners' project inhibited the flow of a
natural drainway such that the first exception may also apply under the circumstances present here.
But no party argues or otherwise suggests that it does, and the trial court made rulings concerning
only the due care exception discussed herein. Therefore, we limit our review accordingly.
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
875, 523 P. 2d' 186 ( 1974), overruled by Phillips v. King County, 136 Wn.2d 946, 968 P.2d 871
1998))
Our Supreme Court first recognized a third exception— the exception at issue here— in
Currens. There, the Currenses urged the court to formally recognize that the common enemy
doctrine shields only reasonable conduct; that is, a landowner who acts unreasonably may be liable
for damages caused by surface water flooding. Curren, 138 Wn.2d at 863. The Supreme Court
agreed, concluding, with regard to the third exception, that "[ a] lthough it does. not affect a
landowner' s ability to alter the flow of surface water, it does require avoidance of unnecessary
infringement upon a neighbor' s free enjoyment of his or her property." Currens, 138 Wn.2d at
Therefore, according to this " due care" exception, a landowner may improve their land free
from liability for damages caused by the change in the flow of surface waters onto neighboring
property so long as the landowners act in good faith and by avoiding unnecessary damage -to the
property of others. Currens, 138 Wn.2d at 864. The due care exception " thus serves to cushion
the otherwise harsh.allocation of rights under the common enemy doctrine." Currens, 138 Wn.2d
at 864.
At the same time that the Currens court unequivocally adopted the due care exception, it
also rejected an invitation to depart from its common enemy doctrine jurisprudence in favor of the
reasonable use rule." 13 8 Wn.2d at 866. The hallmark of the reasonable use rule is that it requires
s
Assuming that. any change in flow is not caused by inhibiting the flow of a natural watercourse
or drainway. Mackie, 36 Wn. App. at 388.
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
courts to weigh the -utility of the improvements against the resulting damage to adjacent properties.
Curren, 138 Wn.2d at 866.
Here, it is precisely because the trial court apparently indulged in this consideration of the
project' s utility that the Warners allege error.. Regarding the due care exception, the trial court
found as follows:
1. 15 The Warners' filling and grading improvements do not serve any
particular utility on the Warner property. Defendants took no action to mitigate
any rainwater flow until after it was brought to their attention by Plaintiff. At that
point, Defendants. either dug themselves or allowed the Plaintiff to dig some
rudimentary ditches through the roadway. These ditches have proven largely
ineffective to ameliorate negative impacts to Hoover' s property. Considering the
low level of utility of the project, the significant impact on Plaintiff, and the
minimal mitigation efforts that were undertaken, the Court finds that the
Defendants' actions were not reasonable. They were not taken in good faith and in
a manner to avoid unnecessary damage to Plaintiff.
CP at 431.. Because the trial court referenced the utility of the project and the impact it had on
Hoo'ver' s property, the Warners contend that, in effect, the trial court erroneously adopted the
reasonable use rule and, therefore, reversal is required.
But we decline to reverse on this ground for two reasons. First, the trial court' s references
to " utility" and " impact" were superfluous because the court also considered ( consistent with what
the due care exception contemplates) the fact that the Warners took no action to mitigate the
damages from the grading project until Hoover requested their assistance to alleviate the adverse,
drainage consequences. And in doing so, the trial court also noted that the ditches in the roadway
were " rudimentary" and " largely ineffective." The court then concluded that the Warners' actions
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
were not reasonable and were not taken in good faith and in a manner to avoid unnecessary damage
to Hoover.6
Second, we may affirm on any ground supported by the record. Wash. Fed. Say. & Loan
Ass' n v. Alsager, 165 Wn. App. 10, 14, 266 P. 3d 905 ( 2011). To the extent that the trial court
erred by referring to the " utility" of the grading project, the record nevertheless contains facts to
support the application of the due care exception.
Our decision in Borden v. City of Olympia, 113 Wn. App. 359, 53 P. 3d 1020 ( 2002), is
instructive.' There, the Bordens, whose property lay in a drainage basin, sued the city of Olympia
when the city assisted a private developer' s efforts to build a stormwater drainage project. Borden,
113 Wn. App. at 363. The Bordens experienced considerable flooding each winter for several
years after the project' s completion. Borden, 113 Wn. App. -at 364. The city ultimately remedied .
the problem, but the Borden brought suit in part based on the common enemy doctrine. Borden,
113 Wn. App. at 365. The Bordens asserted that the drainage system created additional discharges
into the surrounding wetlands which exceeded the soil' s capacity to accept them and resulted in
raising the water table under the Bordens' own property. Borden, 113 Wn. App. at 365.
We reversed an order granting summary judgment in favor of the city in part because the
city could have taken measures to properly analyze the drainage capabilities and could have
realized that alternatives existed. Borden, 113 Wn. App. at 372. We concluded that a rational trier
6 In its letter ruling, the trial court also clearly cited the correct passagefrom Sleek setting out what
courts must find to apply the due. care exception.
7 We also mentioned in Borden that the adoption of the due care exception essentially signifies
that Washington now recognizes a negligence cause of action for altering the flow of naturally
occurring surface and ground water. 113 Wn. App. at 368.
 	 	 	 	 	 	 	 	 	 	 	 	 	

Consol. Nos. 45742- 3- 11 / 46562 -1 - II
of fact could find that the city did not use due care to minimize the Bordens' damages. Borden,
113 Wn. App. at 372.
Similarly, here, the record contains no facts to support the notion that the Warners did any
investigation or conducted any study to determine whether their grading project would have any
adverse impact on the ability of Hoover' s property to drain. And as the trial court recognized,
once they became aware of the issue,.the Warners did little to mitigate the damage. In fact, Scott
contacted Thurston County to levy a complaint against Hoover for septic failures stemming from
the flooding that his own project caused.
And despite some suggestion that the Warners initially agreed to remove the road, Ernest
testified that they refused to continue cooperating with Hoover after Hoover levied complaints
against them. Consequently, the Warners cannot be said to have used due care to avoid
unnecessary damage to Hoover. Accordingly, we hold that the Warners' argument fails for one of
the two aforementioned reasons.
III. TRESPASS
The Warners next argue that because they caused no intentional or.negligent intrusion of
water onto Hoover' s property, the trial court erred by ruling that they committed trespass. But
Washington courts treat claims for trespass and negligence arising from a.single set of facts as a
single negligence claim.. Hurley v. Port Blakely Tree Farms L.P., 182 Wn. App. 753, 772, 332
P. 3d 469 ( 2014) review denied, 182 Wn.2d 1008 ( 2015). Because the trial court here found
liability under trespass and negligence, reversal is not required even iftrespass was not committed.
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
IV. INJUNCTIVE RELIEF
The Warners further argue that because the trial court' s ruling precludes the Warners from
engaging in activity that has any adverse effect on Hoover' s drainage, the trial court entered an
impermissibly broad injunction. We agree.
We review a trial court' s decision to grant an injunction and the terms contained in the
injunction for abuse of discretion. 8 Kucera v. Dep' t of Transp., 140 Wn.2d 200, 209, 995 P. 2d 63
2000). Trial courts have broad discretionary power to fashion injunctive reliefto fit the particular
circumstances of the case before it. Rupert v. Gunter, 31 Wn. App. 27, 30, 640 P. 2d 36 ( 1982). A
trial court necessarily abuses its discretion if the decision is based upon untenable grounds or the
decision is manifestly unreasonable or arbitrary. Kucera, 140 Wn.2d at 209.
O] ne who seeks relief by temporary or permanent injunction must show ( 1) that he has
a clear legal or equitable right, (2) that he has a well-grounded fear of immediate invasion of that
right, and ( 3) that the acts complained of are either resulting in or will result in actual and
substantial injury to him."' Kucera, 140 Wn.2d at 209 ( alteration in original) (quoting Tyler Pipe
Indus., Inc. v. Dep' t of Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213 ( 1982)). Here, regarding
injunctive relief, the trial court concluded as a matter of law that "[ d] efendants are permanently
enjoined from undertaking any further actions on the Warner property, that adversely affect the
drainage on the Hoover property." CP at 433.
Hoover fails to establish the first factor and, therefore, the trial court abused its discretion
by granting the injunction insofar as it is currently written. As mentioned, unless one of the three
8 We exercise our discretion under RAP 2. 5 to review this arguably unpreserved error.
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Consol. Nos. 45742- 3- 1I / 46562- 1- 1I
recognized exceptions applies, the common enemy doctrine entitles property owners to develop
their land without regard for the drainage consequences to other landowners. Currens, 13 8 Wn.2d
at 861.
Accordingly, the enjoining language is overly broad because it precludes the Warners from
engaging in conduct to which they are entitled by law. Although Hoover has a legal right to be
free from negligent acts that adversely affect his property' s drainage, he is not entitled to injunctive
relief that precludes all or any act that may cause such results. Therefore, the trial court abused its
discretion by granting an overly broad injunction. We vacate the injunction.
V. ATTORNEY FEES UNDER CR 37( C)
The Warners next contend that the .trial court abused its discretion by awarding attorney
fees pursuant to CR 37( c) because ( 1) the admission sought was of no substantial importance, ( 2)
the Warriers' failure to admit did not cause Hoover to incur additional expenses, and ( 3) even if
warranted, the expenses exceeded a reasonable amount. We disagree.
We review a trial court' s decision to impose discovery sanctions under CR 37(c) for an
abuse of discretion. Rivers v. Wash. State Conference ofMason Contractors, 145 Wn.2d 674, 684,
41 P. 3d 1175 ( 2002). A trial court abuses its discretion if its decision is manifestly unreasonable
or based on untenable grounds. - Thompson v. King Feed & Nutrition Serv., Inc., 153 Wn.2d 447,
460, 105 P. 3d 378 ( 2005).
CR 37( c) provides that if a party fails to admifthe truth of any matter as requested under a
CR 36 request for admission and the matter is subsequently proved, the party may apply to the
trial court for an order requiring the other party to pay reasonable expenses incurred in making that
proof, including attorney fees. The trial court may then order payment unless it finds that ( 1) the
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Consol. Nos. 45742- 3- 11 / 46562- 1- 11
request was held objectionable pursuant to CR 36( a), ( 2) the admission sought was of no
substantial importance, ( 3) the party failing to admit had reasonable ground to believe the fact was
not true or the document was not -genuine, or ( 4) there was other good reason for the failure to
admit. CR 37( c); Thompson, 153 Wn.2d at 460.
Here, the trial court found by a preponderance of the evidence that some rock and/or other
material was brought in and deposited in the areas to the north and to the west of the Hoover
property. The court concluded that the requests for admission were of substantial importance and
that none of the exceptions in CR 37( c)( 1)-( 4) applied. The trial court awarded fees in the amount
of $32,714. 85.
The record supports these findings. Hoover' s allegations depended almost entirely on the
fact that the Warners dumped, spread, and compacted fill material along the natural drainage paths
abutting his property. The existence of fill material was an issue of substantial importance for
Hoover' s case. The Warners' contention that Hoover incurred no additional expenses is equally
unavailing. Hoover took depositions and called additional witnesses at trial solely so that the court
could hear testimony regarding fill material from someone other than Hoover himself.
Finally, pursuant to CR 37( c), trial courts are permitted to award " reasonable" expenses
and attorney fees. CR 37( c). What is reasonable depends on the circumstances of each case and
we do not substitute our judgment for that of the trial court. We hold that the trial court did not
abuse. its discretion by awarding fees under CR 37( c) because the fill material issue was central to
the resolution of the case, Hoover incurred additional expenses in making his proof, and the trial
court did not abuse its discretion in ordering a reasonable amount.
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
VI. MAINTENANCE AND INSPECTION
Finally, the Warners argue that the trial court erred by requiring them to inspect and
maintain the ditches built as part of the remedial plan to abate Hoover' s drainage complications.
The Warners assert that because they are not liable for Hoover' s damages, there is no basis on
which the trial court could fairly impose the inspection condition. We disagree.
After the trial court ordered a remedial plan as an alternative to damages, the parties agreed
upon a plan that called for a drainage system to ameliorate Hoover' s water damages. The court -
approved order contained the condition that "[ d] efendants shall regularly inspect and maintain the
drainage system ( at least annually) to ensure that it functions." CP at 504. This order became part
of the court -approved final acceptance order signifying the completion of the remediation plan.
Both parties stipulated to the final order with its accompanying conditions. We hold that the
Warners waived the right to challenge those conditions for the first time on appeal.
VIL ATTORNEY FEES
Hoover requests additional .attorney fees pursuant to CR 37( c) on appeal. But we may
award such fees as an additional sanction if the appeal of the trial court' s sanctions is frivolous or
taken for delay. Rhinehart v. K1RO, Inc., 44 Wn. App. 707, 711, 723 P. 2d 22 ( 1986). Here, the
Warners' challenge to the amount of fees was a reasonable challenge and was, therefore, not
frivolous. Accordingly, we award no additional fees.9
9
Similarly, Hoover requests fees for his efforts to respond to the Warners' challenge to the trial
court' s finding of fact 1. 11, which he deems frivolous. But that is the same finding on which the
trial court based its award of fees under CR 37( c). For the reasons explained above, we decline to
award additional fees on this basis.
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Consol. Nos. 45742 -3 -II / 46562 -1 - II
In conclusion, we vacate the impermissibly broad injunction, but we affirm the trial court
in all other respects. Additionally, we decline to award attorney fees on appeal.
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.
7 JHANS0N,.C. J.
We concur:
F ORC' J.
SUTTON, J.'
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