Zoya Spencer, Appellant V. Robert And Karen Luton, Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ZOYA SPENCER, a single woman,
Appellant,
ROBERT LUTON and KARIN
LUTON, as individuals and as the
marital community comprised thereof,
Respondents.
NO. 69428-6-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 17, 2014
Leach, C.J. — Zoya Spencer appeals the trial court's dismissal of her
trespass and nuisance claims against her neighbors Karin and Robert Luton.
She challenges the court's findings of fact and conclusions of law, the dismissal
of her intentional trespass claim at the close of her case, and the denial of her
motion for 	reconsideration. 	Because substantial evidence supports the trial
court's findings of fact, which support its conclusions of law, Spencer did not
present evidence sufficient to support an intentional trespass claim, and the trial
court 	did 	not 	abuse 	its 	discretion 	in 	denying 	Spencer's 	motion 	for
reconsideration, we affirm.
FACTS
The rockery at issue runs the length of the backyard boundary dividing two
lots of unequal elevation. 	It is approximately 55 feet long, varies in height from 3
1/2 to 5 feet, and is likely at least 30 years old. 	It is composed of basalt rocks of

NO. 69428-6-1 / 2
varying size,1 stacked on and around each other. 	It was built as an erosion
control rockery, not a structural retaining wall.
Zoya Spencer purchased her property in 1987 or 1988 but did not live on
the property after 1996. 	In 2005, Karin and Robert Luton bought their property,
which sits higher than the Spencer property. 	The rockery runs between their
backyards, on a sloped area of the Lutons' property.
In 1998, 	Eric 	Robison, 	who 	previously 	owned 	the 	Lutons' 	property,
embarked on a large landscaping project. 	This included leveling the backyard
and installing a fence.2 	He constructed a graduated retaining wall of railroad ties
approximately 18 to 30 inches away from the rockery, backfilling the wall with
soil. 	After receiving complaints from James Costello, Spencer's tenant, Robison
commissioned a survey, which determined that the rockery was on Robison's
property. 	Spencer or Costello asserted in an e-mail or letter in 1998 that the
rockery was unstable, and erosion was increasing due to Robison's alterations.
The neighbors had no further contact until the spring of 2005, after Robison listed
his house for sale. 	At that time, Spencer and Costello sent Robison another
letter, 	stating 	the same concerns. 	In 	May 	2005, Karin 	and 	Robert Luton
purchased Robison's property.
1 "One- to two-man" rocks, i.e., 58 to 210 pounds and 265 to 580 pounds.
2 The height differential between the south end and the north end of the
backyard was measured in 1998 as four feet.
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NO. 69428-6-1 / 3
In 2007, Spencer demolished the house on her property, replacing it with
a new, taller one she intended to sell. 	As part of the new construction, she
excavated some earth near the foot of the rockery. 	Spencer listed the house for
sale in 2009.
In August or September of 2009, shortly after the Lutons listed their own
house for sale, 	Costello sent the Lutons a letter raising concerns about the
rockery, and Costello and Robert Luton had a brief phone conversation. 	They
had no follow-up communication. 	In December 2009, Spencer hired Bradley
Biggerstaff, a geotechnical consultant. 	He reported displaced and fallen rocks
and voids in the rockery and recommended that the rockery "be repaired or
replaced as soon as possible to prevent damage to the adjacent property or
possibly injury to the residents there."
On February 2, 2010, 	Spencer filed 	suit against the Lutons, 	claiming
trespass and nuisance. 	The Lutons 	hired 	geotechnical 	consultant 	Jamey
Battermann, 	who 	concluded 	that the 	rockery 	was 	in 	"good 	condition" 	and
"structurally sound" but that the toe support at one end had been removed by the
grading on the Spencer property during construction. 	Because removal of this
support could over time "potentially lead[] to a destabilization of the rockery,"
Battermann recommended repair of the toe support and confirmed this repair
about two weeks after its completion in July 2010. 	In May 2011, he concluded
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NO. 69428-6-1 / 4
that the rockery was "providing long term erosion protection for [the] slope behind
it" and that he did not have concerns that it would migrate onto the Spencer
property. 	Biggerstaff observed in November 2011 that "the condition of the rock
wall hadn't changed significantly" since his December 2009 visit.
After the Lutons completed the repair, Costello filed a complaint with the
city of Seattle, which issued a notice of violation to the Lutons for repairing the
rockery without a permit. 	The Lutons applied for a permit, which the city issued.
An inspector from the Seattle Department of Planning and Development (DPD)
inspected the rockery for purposes of a "simple repair" on February 17, 2011,
and reported that the rockery passed his final inspection.
On December 2, 2011, the case went to arbitration. 	The arbitrator found
for the 	Lutons on the trespass claim and for Spencer on the nuisance claim,
awarding her damages of $1,200. 	Spencer requested a trial de novo.
At a bench trial, the court dismissed Spencer's intentional trespass claims
at the conclusion of her case, 	allowing her 	negligent trespass and 	nuisance
claims to go forward. 	On September 10, 2012, the court entered findings of fact
and conclusions of law, dismissing with prejudice all of Spencer's claims. 	The
trial court denied Spencer's motion for reconsideration and entered a judgment
for the Lutons of $14,081.25 in costs and reasonable attorney fees.
Spencer appeals.

NO. 69428-6-1 / 5
STANDARD OF REVIEW
This court reviews a trial court's findings and conclusions by determining if
substantial evidence supports the trial court's findings of fact and if those findings
support the trial court's conclusions of law.3 	Substantial evidence exists if it is
sufficient to persuade a fair-minded, 	rational person of the truth of the matter
asserted.4 	We treat unchallenged findings of fact as verities on appeal.5 	We
review conclusions of law de novo6 and a trial court's denial of a motion for
reconsideration for abuse of discretion.7 	A court abuses its discretion when its
decision 	is 	manifestly 	unreasonable 	or based 	upon 	untenable 	grounds 	or
reasons.8 Where a trial court dismisses claims after the plaintiff rests under CR
41(b)(3), dismissal is proper "'if there is no evidence, or reasonable inferences
therefrom, that would support a verdict for the plaintiff.'"9
ANALYSIS
In 	her 	complaint, 	Spencer 	alleged 	common 	law 	trespass 	"caused
negligently or intentionally" by the Lutons' rockery, as well as common law and
3 State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
4 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
5 State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
6 State v. Acrev. 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
7 Brinnon Grp. v. Jefferson County, 159 Wn. App. 446, 485, 245 P.3d 789
(2011) (citing Lilly v. Lynch, 88 Wn. App. 306, 321, 945 P.2d 727 (1997)).
8 State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
9 Stieneke v. 	Russi, 145 Wn. App. 	544, 568 n.5, 	190 P.3d 60 (2008)
(quoting Willis v. 	Simpson 	Inv. 	Co., 	79 Wn. App. 	405, 410, 	902 	P.2d 	1263
(1995)). -5-

NO. 69428-6-1 / 6
statutory nuisance. 	She contends that the trial court should not have dismissed
her intentional trespass claim 	after she completed 	her case because a trial
stipulation supports this claim. 	She also assigns error to 13 of the trial court's 17
findings of fact and challenges all the trial court's conclusions of law except the
jurisdictional one.
Dismissal at Close ofSpencer's Case under CR 41(b)(3)10
Spencer contends that the trial court should not have dismissed her claims
for intentional trespass after she completed her case.11 	The Lutons first respond
that 	Spencer 	did 	not 	preserve 	this 	issue 	for 	review 	because 	she did 	not
specifically 	designate 	the 	trial 	court's 	CR 	41(b)(3) 	order 	in 	her 	motion 	for
reconsideration or her notice of appeal.
Generally, before an appellate court will review a trial court's order, an
appellant 	must 	seek 	review 	of 	that 	order.12 	However, 	in 	her 	motion 	for
10 CR 41(b)(3) provides,
After the plaintiff, in an action tried by the court without a jury,
has completed the presentation of his evidence, the defendant,
without waiving his right to offer evidence in the event the motion
is not granted, may move for a dismissal on the ground that upon
the facts and the law the plaintiff has shown no right to relief.
The court as trier of the facts 	may then determine them and
render judgment against the plaintiff or may decline to render any
judgment until the close of all the evidence.
11 The trial court dismissed both common law and statutory claims for
intentional trespass.
12 See Ortblad v. State, 88 Wn.2d 380, 385, 561 P.2d 201 (1977) (holding
that where respondents failed to seek review of trial court's denial of damages
and costs 	in 	mandamus action, 	issue was not before the 	reviewing 	court);
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NO. 69428-6-1 / 7
reconsideration, Spencer requested reconsideration of the trial court's findings
and conclusions "on all of the issues presented at trial." 	Moreover, the trial court
found that "[a]t no time did the Lutons act intentionally by trespassing onto the
Spencer property." The Rules of Appellate Procedure "will be liberally interpreted
to promote justice and facilitate the decision of cases on the merits."13 	Here,
although 	Spencer did 	not specifically designate the trial court's CR 41(b)(3)
order, her appeal of the findings of fact encompassed the trial court's finding that
the 	Lutons 	did 	not 	intentionally trespass 	on 	her 	property. 	This 	adequately
preserved the issue for review.
In its order, the court dismissed Spencer's damage claims under RCW
4.24.63014 as not alleged in her complaint. 	In also dismissing her common law
trespass claim, the court explained, "In this case there is no evidence, even in
the light most favorable to Ms. Spencer. .. that [the Lutons] acted intentionally.
Wanner v. Beech Aircraft Corp.. 37 Wn. App. 203, 212-13, 680 P.2d 425 (1984)
(holding that failing to cross appeal trial court's decision about setoff precluded
respondent from seeking review of that decision); RAP 2.4(a).
13 RAP 1.2(a).
14 RCW 4.24.630 states that a person who
wrongfully 	causes waste 	or 	injury to 	the 	land, 	or wrongfully
injures personal property or improvements to real estate on the
land, is liable to the injured party for treble the amount of the
damages caused by the removal, waste, or injury 	[A] person
acts "wrongfully" 	if the 	person 	intentionally and 	unreasonably
commits the act or acts while knowing, or having reason to know,
that he or she lacks authorization to so act.
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NO. 69428-6-1 / 8
There's no evidence that they acted, period. And even under Bradley15 you need
to have an act." 	Costello confirmed during cross-examination that he never saw
Robert or Karin Luton on the Spencer property and never saw them remove or
damage anything.
In Bradley v. American Smelting & Refining Co., the Washington Supreme
Court articulated a four-part test for trespass that includes "an intentional act" but
also noted that intent is not limited to consequences the actor desired to bring
about.16 	"'If the actor knows that the consequences are certain, or substantially
certain, to result from his act, and still goes ahead, he is treated by the law as if
he had in fact desired to produce the result.'"17
Here, 	the Lutons committed 	no "act" from 	which 	consequences were
"substantially certain[] to result." 	Spencer attributes to Robison the requisite act,
the placement of the railroad ties. 	She argues that the Lutons have liability as
successor owners. 	However, Spencer failed to present evidence that Robison's
retaining wall caused a continuing trespass for which the Lutons would be liable.
Therefore, the trial court properly granted the Lutons' CR 41(b)(3) motion to
dismiss this claim when Spencer completed her case.
15 104 Wn.2d 677, 709 P.2d 782 (1985).
16 Bradley, 104 Wn.2d at 692-93.
17 Bradley, 104 Wn.2d at 682 (quoting Restatement (Second) of Torts §
158 cmt.b (1965)).
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NO. 69428-6-1 / 9
No Stipulation that Rockery Took 220 Feet of Spencer's Property
Spencer argues that the parties stipulated, "[T]he rockery has taken 220
feet of Spencer's property" and that this supports her trespass claim. 	She bases
this contention on a court reporter's transcription error. 	The reporter transcribed
a statement from Spencer's counsel as "Mr. Schwanz and myself, in agreement
with my client, they'll stipulate to the value of 220 feet were taken from my client's
property." 	The trial court later entered an order amending the verbatim report of
proceedings to "they'll stipulate to the value jf 220 feet were taken from 	my
client's property." 	Thus, if Spencer decided to construct a retaining wall on her
property because of concerns about the rockery, she would lose 220 square feet
of land. The trial court noted in its order the parties' stipulation that "the value of
this loss [from a retaining wall on Spencer's property] would be $1568.00." 	The
parties conditionally stipulated to the value of such a loss but did not stipulate
that a loss occurred. 	Because Spencer did not demonstrate at trial that she lost
this area of land, her claim fails.
Findings of Fact
Spencer disputes the 	trial 	court's 	finding 	that "[c]ompetent 	evidence
established that the rockery is situated upon the Luton property." 	She contends
that a 1998 survey shows a trespass because the rockery "crossed over slightly
onto Spencer's property at the center and at the south end of the rockery."
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NO. 69428-6-1/10
Robison testified, however, that the survey demonstrated his property extended
12 inches beyond the rockery in some places.
Spencer 	also 	challenges 	the 	court's 	finding 	that 	"the 	rockery 	is 	in
reasonably good condition and shows no evidence of past lateral or rotational
movement." 	She argues that portions of the rockery continue to slide onto her
property. 	Battermann, the Lutons* geotechnical expert, testified that the rockery
was in "very good condition" and "structurally sound." 	When he visited the Luton
property in January 2010, he saw no evidence of collapse, hydrostatic pressure,
overturning,18 or lateral movement. Spencer's geotechnical expert, Biggerstaff,
testified that the rockery needed to be repaired or replaced because of cracked,
"melting," and dislodged rocks, but also stated that nearly two years after his first
visit to 	Spencer's 	property, 	"the 	condition 	of the 	rock 	wall 	hadn't 	changed
significantly." 	On cross-examination, Biggerstaff confirmed that other than "silt
that had gone maybe 1 to 2 feet on to the Spencer property" and one or two
rocks, 	he 	documented 	no 	damage from 	the 	rockery. 	Substantial 	evidence
supports the trial court's findings that the rockery is stable and in reasonably
good condition.
18 Overturning occurs when soils behind the rocks begin to exert pressure
that pushes the rocks out and increases the verticality of the rockery until rocks
begin to fall from the top.
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NO. 69428-6-1 /11
Spencer also disputes the trial 	court's finding 	that the rockery is "an
erosion control 	rockery, 	rather than a structural 	retaining wall," and that the
placement of railroad ties and additional soil in 1998 "did not add an undue or
improper weight or surcharge to the rockery." 	Battermann stated that the cut
slope on which the Luton property sits "appears [to have] been stable for an
extended 	time" and 	was 	stable when 	he 	examined 	it during 	his visit. 	He
observed that the rockery functions as erosion control, not structural support, for
the slope. 	The railroad tie retaining wall and soil, according to Battermann, "adds
a surcharge on to the cut slope. 	It has not affected the stability of the rockery in
my opinion." 	Biggerstaff disagreed, but he acknowledged that in the 14 years
since Robison added the 	railroad timbers 	and 	soil, the 	rockery "still has not
completely failed" and that he documented no migration of the rockery during the
2 years between his visits.
Spencer analogizes to Woldson v. 	Woodhead,19 where the trial court
found that a previous owner's conversion of a rubble masonry wall to a structural
retaining wall was "a use not contemplated by its original design" that caused
damage to the wall. 	This damage constituted a continuing trespass for which the
court found a successive owner liable.
19 159 Wn.2d 215, 217, 149 P.3d 361 (2006). The Washington Supreme
Court heard the case for the narrower issue of the statute of limitations.
20 Woldson, 159 Wn.2d at 217-18.
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NO. 69428-6-1 /12
Woldson is distinguishable. 	In that case, the rubble masonry wall itself
became a retaining wall for the fill dirt the previous owners used to raise the level
of the property. 	Subsequent owners then constructed a carport and garage,
which exerted 	unsustainable pressure and caused damage. 	On the Lutons'
property, the 	railroad ties, 	not the 	rockery, 	compose the 	retaining wall. 	The
retaining wall and soil add a surcharge to the stable cut slope, not to the rockery.
Both geotechnical 	consultants 	in this 	case testified 	that there 	is 	little or no
evidence that the 	rockery is migrating 	onto Spencer's property. 	Substantial
evidence supports the trial court's findings that the rockery is not a structural
retaining wall and that the 1998 alterations did not add an undue surcharge to the
rockery.
The trial court found that "part of the toe of the rockery in the northeast
corner of the 	Spencer 	property was 	removed 	during 	the excavation 	of the
backyard of the new Spencer house" and that this removal "likely weakened the
support for the rockery," resulting in dislodged and displaced rocks. 	Spencer
challenges these findings, pointing to her communications with Robison in 1998
and 	the 	Lutons 	in 	2005, 	which 	predated 	construction 	of 	her 	new 	home.
Battermann confirmed, however, that the repair of the toe support and restacking
of rocks stabilized the rockery.
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NO. 69428-6-1/13
Spencer further contends, contrary to the trial court's findings, that "[t]he
rockery as a whole has never been inspected, permitted, or 'passed by the City
of Seattle.'" 	She emphasizes that the city inspected and passed only the very
limited repair of the toe support and two areas where rocks were dislodged.
Seattle DPD manager David Cordaro testified that his department's 2011
inspection was not a structural, code, or engineering review but rather a review of
a "simple repair." 	However, he also confirmed that his inspectors would check
"failed," not "passed," if there were concerns with a rockery's stability or structural
soundness. 	He confirmed that a permitted repair that passes when it should
have failed subjects the city to potential liability and agreed that inspectors are
"instructed to be careful" in their determinations. 	Because the DPD inspector
checked "passed" and "final," substantial evidence supports the trial 	court's
finding that the rockery passed the city's inspection.
Spencer also challenges the trial court's finding of fact 13:
The Court finds since Ms. Spencer has not lived at the residence
since 1996 any issues associated with either rocks falling onto the
property ... or any alleged silting that may have occurred has not
interfered with Ms. Spencer's enjoyment or use of the property, or
caused her to be insecure in the use of her property.
Spencer contends that this is a mistakenly labeled conclusion of law, "albeit a
novel and erroneous one." 	She argues that the trial court denied her a remedy
because she is a landlord who no longer lives on the property.
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NO. 69428-6-1 /14
Landlords may recover damages for nuisance on properties they own but
do not occupy. 	"'Where the injury to land is temporary, the measure of damages
is the diminished rental value if the property is to be rented, or the diminished
value of its use if the property is to be used by the owner.'"21 	Where the injury to
the land caused by the nuisance is "'permanent and irreparable, the measure of
damages is the difference in the market value of the property before and after
creation of the nuisance.'"22
Spencer interprets the trial court's finding too broadly. 	The trial court
found that Spencer has not lived at the residence since 1996, which Spencer
does not dispute. 	The court found 	that the rockery is stable, 	not damaging
Spencer's 	property, 	and 	not 	interfering 	with 	her 	use and 	enjoyment 	of the
property during the occasions she is there. 	The court did not conclude from this
finding that as a nonresident owner, Spencer does not have standing to sue.
Spencer's contention has no merit.
21 Miotke v. City of Spokane, 101 Wn.2d 307, 332, 678 P.2d 803 (1984)
(quoting Barci v. Intalco Aluminum Corp., 11 Wn. App. 342, 356, 522 P.2d 1159
(1974)), overruled on other grounds by Blue Sky Advocates v. State, 107 Wn.2d
112, 727 P.2d 644 (1986).
22 Miotke, 101 Wn.2d at 332 (quoting Barci, 11 Wn. App. at 356); see also
Vance v. XXXL Dev.. LLC, 150 Wn. App. 39, 45, 206 P.3d 679 (2009) ("[0]ne
measure of damages for nuisance is the diminution in a property's value due to
the nuisance."). 	Vance involved a lawsuit by an owner who had sold her property
by the time of trial; the Court of Appeals held that she had standing to maintain
her nuisance claim despite the sale. 	There was no dispute that a present owner
has standing to sue. 	Vance, 150 Wn. App. at 42.
-14-

NO. 69428-6-1/15
The trial court found that "as soon as the Lutons were made aware of any
issues associated with the rockery they took steps to resolve these issues." The
court also found that the Lutons did not "act intentionally by trespassing" and "did
not omit to perform any duty owed to Ms. Spencer in regards to the rockery."
Spencer assigns error to this finding in its entirety and argues that the latter
portion is an erroneous conclusion of law.
Substantial evidence shows that Robert Luton responded to the letter from
James Costello in August or September 2009, which was the first time Costello
or Spencer raised 	concerns with 	him about the rockery. 	Very shortly after
Spencer filed suit in February 2010, the Lutons hired Battermann to evaluate the
rockery. 	In July 2010, the Lutons made the repairs that Battermann suggested.
Failing to remove something may also constitute trespass,23 but the trial court
found 	that by commissioning 	the 	repair, 	the 	Lutons 	took 	steps to 	remove
whatever parts or pieces of the rockery had fallen onto Spencer's property.
Finally, Spencer assigns error to the court's finding that "an occasional
rock has fallen from the rockery but that these events have been rare 	[A]t the
time of trial there was one rock from the rockery that was out of place." 	Spencer
claims that "[e]ight rocks have fallen since Lutons' July 2010 'repair.'"
23 	Bradley, 	104 Wn.2d 	at 	681-82 	(quoting 	Restatement (Second) of
Torts § 158(c)).
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NO. 69428-6-1/16
Biggerstaff testified that in November 2011, he saw at most two displaced
rocks. 	Battermann's 	and 	Cordaro's 	testimony 	supported 	a 	finding that the
rockery is stable. 	The trial court explicitly found 	Battermann's opinion to be
credible. 	We defer to the trial court's credibility determinations. 	Substantial
evidence supports the trial court's findings.
Conclusions of Law
Spencer also challenges three of the trial court's conclusions of law:
2. The Court concludes that the rockery in question is in
generally good condition and is structurally sound and therefore
concludes as a matter of law it does not constitute a nuisance as
defined by RCW 7.48.010 and RCW 7.48.120.
2. 	[sic] 	The 	Court 	concludes 	as 	a 	matter 	of 	law the
defendants did not breach their duty to the plaintiff to maintain the
rockery.
3. The Court concludes as a matter of law the plaintiff failed
to prove by a preponderance of the evidence (i) negligent trespass
on 	the 	part 	of the 	defendants, 	or 	that 	(ii) 	the 	Luton 	rockery
constitutes a nuisance. 	Therefore the Court finds in favor of the
defendants and dismisses this matter against the defendants with
prejudice.
A common 	law trespass 	claim 	requires 	"'an 	intentional 	or 	negligent
intrusion onto or into the property of another.'"24 	To prove intentional trespass
under the test articulated in Bradley, Spencer must show (1) an invasion of her
24 Pruitt v. Douglas County. 116 Wn. App. 547, 553, 66 P.3d 1111 (2003)
(internal quotation marks omitted) (quoting Borden v. Citv of Olvmpia, 113 Wn.
App. 359, 373, 53 P.3d 1020 (2002)).
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NO. 69428-6-1/17
interest in the exclusive possession of her property, (2) an intentional act, (3)
reasonable foreseeability that the act would disturb Spencer's possession, and
(4) 	actual 	and 	substantial 	damages.25 	Negligent 	trespass 	requires 	proving
negligence: 	duty, breach, causation, and damages.26 	Afailure to show actual
and substantial damages will result in dismissal ofthe claim.
RCW 7.48.010 defines an actionable nuisance as "whatever is 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." 	RCW 7.48.120 further 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, 	offends decency,
or... in 	any 	way 	renders 	other 	persons 	insecure 	in 	life, 	or 	in 	the 	use 	of
property." 	In other words, "[a] nuisance is an unreasonable interference with
another's use and enjoyment of property."28 	Successive owners who do not
29 	a
abate a continuing nuisance are liable as if they created the nuisance. 	Anyone
who 	experiences 	an 	injurious 	effect 	to 	his 	property 	or 	a loss 	of 	personal
25 Bradley, 104 Wn.2d at 692-93.
26 Pruitt, 116 Wn. App. at 554 (citing Gaines v. Pierce County, 66 Wn.
App. 715, 719-20, 834 P.2d 631 (1992)).
27 Bradley, 104 Wn.2d at 692.
28 Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 592, 964 P.2d 1173
(1998) (cited in Wallace v. Lewis County, 134 Wn. App. 1, 18, 137 P.3d 101
(2006)).
29 RCW 7.48.170.
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NO. 69428-6-1/18
enjoyment due to a nuisance may sue for damages and for injunctive relief to
abate the nuisance.30
We hold that substantial evidence supports the trial court's findings that
the rockery is stable, in good condition, and on the Lutons' property. 	Substantial
evidence likewise supports the finding that rocks fall onto Spencer's property only
rarely. 	Eight rocks at most would 	not appear to constitute the "injurious" or
"indecent or offensive to the senses" conditions described in RCW 7.48.010. We
hold that these findings support the court's conclusion that as a matter of law, the
rockery does not constitute a nuisance.
The Lutons had a duty of reasonable care to refrain from 	creating or
allowing a nuisance. Substantial evidence supports the court's finding that by
repairing the rockery, they performed that duty. 	This finding supports the court's
conclusion that the Lutons did not breach their duty to Spencer to maintain the
rockery.
Finally, the trial court concluded that as a matter of law, Spencer failed to
prove by a preponderance of the evidence either common law negligent trespass
or nuisance. 	To prove 	negligent trespass, 	Spencer must show "actual and
substantial damages."31 	Under the circumstances of this case, eight rocks does
not suffice. 	This absence of actual and substantial damages is fatal to Spencer's
30 RCW 7.48.010, .020.
31 Bradley, 104 Wn.2d at 692-93.
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claim.32 	We hold that the trial court did not err in concluding that Spencer failed
to prove her claims by a preponderance of the evidence. 	Likewise, we hold that
the 	trial court 	did 	not abuse 	its discretion 	in denying 	Spencer's 	motion for
reconsideration.
Attorney Fees
Spencer and the Lutons both request attorney fees and costs on appeal.
Spencer requests fees and costs on the basis of RAP 18.1 and RCW 4.24.630.
The Lutons request fees and costs pursuant to RAP 18.1 and MAR 7.3.
Under MAR 7.3, "[t]he court shall assess costs and reasonable attorney
fees against a party who appeals the award and fails to improve the party's
position on the trial de novo."33 	The trial court awarded the Lutons costs and
attorney fees for the trial de novo. 	Under MAR 7.3 and RAP 18.1, we award
them their appellate costs and reasonable attorney fees.
CONCLUSION
Substantial evidence supports the trial 	court's findings 	of fact, 	which
support its conclusions of law. 	The trial court did not err by granting the Lutons'
motion to dismiss Spencer's intentional trespass claims or by denying Spencer's
motion for reconsideration. 	We therefore affirm and award the Lutons their costs
32 Grundv v. Brack Family Trust. 151 Wn. App. 557, 568, 213 P.3d 619
(2009); see also Wallace, 134 Wn. App. at 14.
33 	RCW 	7.06.060 	contains 	the 	same 	provision 	and 	also 	includes
"reasonably necessary" expenses for expert testimony.
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NO. 69428-6-1 / 20
and reasonable attorney fees on appeal upon their compliance with applicable
court rules.
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WE CONCUR:
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