Ernest M. Edsel And Judy Lamb, Appellants V. Patrick Gill, Et Al., Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ERNEST M. EDSEL, an individual, and No. 53461-4-II
JUDY LAMB, an individual,
Appellants,
v.
PATRICK GILL, an individual; BARBARA
BOWMAN, an individual; DEREK
LAMOUREAUX, an individual; AMBERLEE
D’APPOLIONIO, an individual, and JOHN
DOES (1-10),
UNPUBLISHED OPINION
Respondents.
GLASGOW, J.—Ernest M. Edsel and Judy Lamb1 sued the landlords who owned the duplex
next door to Edsel’s home and their tenants over activities Edsel alleged constituted nuisance,
trespass, and violation of an easement. The trial court granted the defendants’ 2018 partial motion
for summary judgment and the defendants’ 2019 motion for summary judgment on the rest of
Edsel’s claims. Edsel appeals the 2019 summary judgment ruling. He also argues that the trial
court erred by denying his motion to compel discovery and rejecting two declarations that he
submitted. Edsel asks this court to grant two motions under RAP 10.4(d), challenges the trial
court’s award of attorney fees to the defendants, and requests attorney fees on appeal.
1 Lamb was included in the complaint, but she later assigned her claims to Edsel who substituted
himself as the only plaintiff. For simplicity, we refer to the appellants as “Edsel.”
Filed
Washington State
Court of Appeals
Division Two
December 15, 2020

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We reverse the trial court’s dismissal of the burning nuisance claim against the tenants,
alleging that they burned materials in their fire pit that caused noxious fumes and smoke to drift
onto Edsel’s property and into his home. But we otherwise affirm the trial court’s 2019 summary
judgment ruling. We do not review the trial court’s 2018 partial summary judgment order because
Edsel did not designate it in his initial or amended notice of appeal. We deny Edsel’s motions to
this court because RAP 10.4(d) does not permit a party to file a nondispositive motion in their
brief. We remand for the trial court to reconsider its attorney fees award. We do not award attorney
fees to any party on appeal.
FACTS
A. Background
In 2016, a trust, whose sole beneficiaries were Edsel and his wife Lamb, purchased a house
in Bremerton, Washington. Edsel and Lamb moved into the house. Next door to Edsel and Lamb
was a duplex owned by Patrick Gill and his wife Barbara Bowman. Gill and Bowman rented the
duplex to two sets of tenants, Derek and Anna Lamoureux and Amberlee D’Appolionio and Joshua
Dodge.
Edsel and his landscapers noticed marijuana plants growing in buckets and in the ground
at Gill and Bowman’s duplex. D’Appolionio had a medical marijuana license. Edsel notified the
police about the marijuana plants, and an officer spoke with D’Appolionio but took no further
action. Edsel also complained to the tenants and landlords about the tenants’ use of a fire pit in
their yard and vehicle noise.
A private driveway provides access to Gill and Bowman’s duplex and other neighborhood
properties, but does not abut Edsel’s property. Mutual easements recorded in 1977 contained a

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3
maintenance provision for any private road built in the easement’s common area in the future.
According to Edsel, the tenants crowded the driveway with cars, failed to clean up trash, and used
drugs in the driveway.
B. Complaint and Discovery
In 2018, Edsel sued Gill, Bowman, and two of their tenants, alleging nine causes of action.
Count one alleged nuisance on the basis that the tenants grew marijuana plants in the yard of Gill
and Bowman’s duplex. Counts two and three alleged nuisance and trespass based on the argument
that smoke and noxious odors from the tenants’ fire pit wafted inside Edsel’s home. Counts four
and five alleged noise nuisance and trespass claims based on the defendants’ use of loud vehicles.
Count six alleged that the condition of the driveway constituted a nuisance because there was trash
in the driveway and it did not comply with various local, state, and federal regulations for private
roads. Count seven alleged that the defendants breached a maintenance agreement for the private
common area driveway contained in the 1977 mutual easements. Counts eight and nine were
nuisance and trespass claims based on the defendants’ alleged failure to maintain English ivy on
their side of the property, causing it to grow into Edsel’s yard.
Edsel sought discovery from Gill and Bowman, who provided some of the materials Edsel
requested but objected with regard to others. Edsel filed a motion to compel production of the
remaining materials, including documents Edsel had provided to the landlords’ insurer, Farmers
Insurance, before losing his own copies. Edsel also sought materials from the landlords about their
tenants. The trial court denied Edsel’s motion to compel.

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C. 2018 Motion for Partial Summary Judgment
In 2018, Gill and Bowman moved for partial summary judgment seeking dismissal of
Edsel’s claims for noise trespass, common area nuisance, and breach of the common area
maintenance agreement regarding the driveway. The tenants joined the landlords’ motion.
Edsel then amended his complaint and substituted himself as plaintiff for Lamb, his wife.
The second amended complaint was otherwise substantively identical to the initial complaint.
Edsel responded to the defendants’ motion for partial summary judgment two days before the
hearing.
The defendants moved to strike Edsel’s response and supporting declarations. The trial
court granted the defendants’ motion to strike because the response and supporting declarations
were untimely. The trial court granted the defendants’ motion for partial summary judgment,
dismissing Edsel’s noise trespass, common area nuisance, and breach of the common area
maintenance agreement claims against both sets of defendants. Edsel filed a motion for
reconsideration and clarification, which the trial court denied.
D. 2019 Motion for Summary Judgment
In 2019, the defendants moved for summary judgment dismissal of the rest of Edsel’s
claims. Edsel responded and filed declarations from himself, Lamb, David Herzog (who operated
the landscaping business that worked on Edsel’s property), Pedro Estrada and Marcelo Osorio
(landscapers who worked for Herzog), and an unsigned and undated declaration from Dr. Helen
Shaha (Edsel’s and Lamb’s primary care physician). The trial court denied Edsel’s motion for a
continuance to obtain Dr. Shaha’s signature. Defendants moved to strike Edsel’s responsive
materials. The trial court declined to consider Herzog’s declaration because it did not state it was

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sworn under the laws of Washington, and the court did not consider Dr. Shaha’s declaration
because it was unsigned and undated.
During the summary judgment hearing, counsel for the landlords stated, “[M]y clients deny
everything. But for purposes of this motion, we’re accepting as true Mr. Edsel’s allegations.”
Clerk’s Papers (CP) at 1382.
The trial court granted the defendants’ summary judgment motion, dismissing the rest of
Edsel’s claims against both sets of defendants. Edsel then filed several posthearing motions,
including a motion asking the trial court to reconsider or amend its summary judgment order.
These motions were based on Edsel’s assertion that the landlords’ lawyer made a “judicial
admission” allegedly conceding all liability when he stated, “[W]e’re accepting as true Mr. Edsel’s
allegations.” CP at 1327-329 (boldface omitted). The trial court denied Edsel’s motion to
reconsider or amend the summary judgment order. The trial court awarded attorney fees to the
defendants, finding Edsel’s claims frivolous.
Edsel appeals the trial court’s denial of his motion to compel discovery, 2019 summary
judgment order, order denying reconsideration, and award of attorney fees to the defendants. Edsel
assigns error to the trial court’s 2018 partial summary judgment order and the trial court’s order
denying his motion for reconsideration of that ruling, but he never designated either order in his
initial or amended notice of appeal.

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ANALYSIS
I. SCOPE OF APPEAL AND APPELLATE MOTIONS UNDER RAP 10.4(d)
A. 2018 Partial Summary Judgment Order and Order Denying Reconsideration
As an initial matter, we hold that neither the 2018 partial summary judgment order nor the
order denying Edsel’s motion for reconsideration of that ruling is properly before this court.
Under RAP 2.4(a), appellate courts generally review only decisions “designated in the
notice of appeal.” RAP 2.4(b) provides an exception that applies where “the order or ruling
prejudicially affects the decision designated in the notice.” For RAP 2.4(b) to apply, “‘[t]he issues
in the two orders must be so entwined that to resolve the order appealed, the court must consider
the order not appealed.’” Cox v. Kroger Co., 2 Wn. App. 2d 395, 407, 409 P.3d 1191 (2018)
(internal quotation marks omitted) (quoting Foster v. Gilliam, 165 Wn. App. 33, 45, 268 P.3d 945
(2011)).
The trial court’s 2018 partial summary judgment order did not prejudicially affect its 2019
summary judgment decision. Had the trial court denied the defendants’ 2018 partial summary
judgment motion, it could still have dismissed Edsel’s other claims in its 2019 summary judgment
order. RAP 2.4(b) thus does not apply. The same is true for the order denying reconsideration. We
also reject Edsel’s argument that the defendants continued to litigate these claims by implied
consent by answering Edsel’s amended complaint. Nothing in the defendants’ answers conflicted
with the trial court’s dismissal.
B. RAP 10.4(d) Motions to Vacate
Edsel moves under RAP 10.4(d) for this court to vacate the 2018 partial summary judgment
order and remand for the trial court to grant his motion to compel because, he claims, the discovery

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7
he should have received would have included dispositive evidence. Edsel also moves under RAP
10.4(d) for this court to reverse both summary judgment orders and remand for a trial on damages
based on his theory that his opposing counsel made a judicial admission at the 2019 summary
judgment hearing. We deny both motions.
RAP 10.4(d) provides, “A party may include in a brief only a motion which, if granted,
would preclude hearing the case on the merits.” See Money Mailer, LLC v. Brewer, 194 Wn.2d
111, 130, 449 P.3d 258 (2019) (citing RAP 17.4(d), which is identical to RAP 10.4(d)). Edsel’s
motions are inappropriate for RAP 10.4(d) because they would not preclude a hearing on the
merits. Instead, they would require this court to consider the merits of Edsel’s arguments about
the trial court’s errors.2
II. ORDERS PROPERLY APPEALED
A. Order Denying Motion to Compel Discovery
Edsel contends that the trial court erred by denying his motion to compel discovery of
documents he produced, sent to Gill and Bowman’s insurer, and then lost when his basement
flooded. Edsel asserts that Gill and Bowman should have obtained and produced these documents
in discovery. We disagree.
“A trial court’s denial of a motion to compel . . . [is] reviewed for an abuse of discretion.”
Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co., 176 Wn. App. 168,
2 Gill and Bowman argue that Edsel’s appellate brief improperly incorporated by reference
material from the record, and they ask this court to disregard all arguments and evidence contained
in attachments incorporated by reference. Under RAP 10.3(a), “it is improper to attempt to
‘incorporate by reference’ into a party’s merits brief arguments made in other pleadings.” State v.
I.N.A, 9 Wn. App. 2d 422, 426, 446 P.3d 175 (2019). Edsel’s incorporation by reference of the
attachments to his brief is improper. We note, however, that to the extent Edsel’s attachments
include documents contained in the record, we have reviewed the entire record in this case.

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183, 313 P.3d 408 (2013). CR 34(c) governs requests for production of documents from nonparties
and “does not preclude an independent action or a subpoena issued pursuant to rule 45 against a
person not a party for production of documents.” CR 45(a)(1)(C) provides a means for a party to
subpoena a third person and require them to “produce . . . documents . . . in [their] possession,
custody or control.” Under CR 26(b)(1)(A), the court may limit discovery from an opposing party
if “the discovery sought . . . is obtainable from some other source that is more convenient, less
burdensome, or less expensive.”
Farmers Insurance, not Gill and Bowman, had the documents Edsel sought. Farmers
Insurance has never been a party to this lawsuit. In some contexts, a party might have sufficient
“control” over documents to trigger a requirement that their insurer provide documents related to
that party, but there is no evidence here that the landlords had sufficient control over the documents
to invoke such a requirement. Edsel could have sought the documents from Farmers Insurance
through CR 34(c) and CR 45(a)(1)(C), but he did not, and he provides no reason for failing to do
so.3 The trial court properly denied the motion to compel the landlords to produce documents that
Farmers Insurance held.
Edsel also argues that he was entitled to “documents and images concerning [the]
[t]enants.” Br. of Appellant at 34. We disagree.
“A party appealing a summary judgment [order] because he has allegedly not been
permitted to conduct adequate discovery must indicate what relevant evidence he expects the
additional discovery would provide.” Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d
3 To the extent Edsel argues that the documents were destroyed due to the “[d]efendants’
destruction or spoliation of [p]laintiffs’ evidence,” Edsel provides no evidence to support any
assertions about spoliation. CP at 116-17.

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619, 627, 818 P.2d 1056 (1991). Here, Edsel asserts only that the trial court’s discovery ruling was
prejudicial because it “discontinued [his] full ability . . . to prove [his] case in summary judgment.”
Br. of Appellant at 33. Edsel does not identify what relevant evidence this additional discovery
likely would have yielded or how that evidence would have helped him defeat the defendants’
summary judgment motions. See Howell, 117 Wn.2d at 627. The trial court properly denied
Edsel’s motion to compel materials about the tenants.
B. 2019 Motion for Summary Judgment
Edsel argues that the trial court erred by granting the defendants’ 2019 motion for summary
judgment because genuine issues of material fact supported his remaining claims. We reverse the
dismissal of the burning nuisance claim against the tenants but affirm the trial court’s summary
judgment dismissal of the other claims.
1. Summary judgment burden and standard of review
In reviewing a summary judgment decision, we apply the same standard as the trial court.
Mackey v. Home Depot USA, Inc., 12 Wn. App. 2d 557, 569, 459 P.3d 371, review denied, 195
Wn.2d 1031 (2020). We review all evidence and reasonable inferences “in the light most favorable
to the nonmoving party.” Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Summary
judgment is appropriate “if . . . there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” CR 56(c); Mackey, 12 Wn. App. at 569. We
consider only the evidence that was brought to the trial court’s attention. RAP 9.12. We review
the trial court’s conclusions of law de novo and may affirm on any basis supported by the record.
Bavand v. OneWest Bank FSB, 196 Wn. App. 813, 825, 385 P.3d 233 (2016).

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“[T]he moving party has the initial burden to show there is no genuine issue of material
fact,” and “meets this burden by showing that there is an absence of evidence to support the
plaintiff’s case.” Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wn. App. 178, 183, 401 P.3d
468 (2017). “Once the moving party has made such a showing, the burden shifts to the nonmoving
party to set forth specific facts that rebut the moving party’s contentions and show a genuine issue
of material fact.” Id. “An issue of material fact is genuine if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.” Keck, 184 Wn.2d at 370.
Under CR 56(e), the nonmoving party “may not rest upon the mere allegations or denials
of a pleading, but a response, by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.” To sufficiently rebut the moving
party’s contentions, the nonmoving party’s response must be based on “personal knowledge, must
set forth facts that would be admissible in evidence, and must show affirmatively that the declarant
of such facts is competent to testify to the matters stated therein.” Lane v. Harborview Med. Ctr.,
154 Wn. App. 279, 286, 227 P.3d 297 (2010).
“A declaration that contains only conclusory statements without adequate factual support
does not create an issue of material fact that defeats a motion for summary judgment.” Id. at 288.
And the “‘nonmoving party . . . may not rely on speculation, argumentative assertions that
unresolved factual issues remain, or in having its affidavits considered at face value.’” Martin v.
Gonzaga Univ., 191 Wn.2d 712, 722, 425 P.3d 837 (2018) (quoting Seven Gables Corp. v.
MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). If the plaintiff “‘fails to make a
showing sufficient to establish the existence of the element essential to that party’s case, and on
which that party will bear the burden of proof at trial,’” summary judgment is proper. Young v.

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Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
2. Landlord liability
As an initial matter, we hold that the trial court properly dismissed the noise and burning
nuisance claims against Gill and Bowman because landlords ordinarily are not liable for nuisances
created by tenants. In general, a landlord in Washington is not liable to a third person for a nuisance
caused by a tenant, unless the nuisance activity was contemplated when the parties signed the
lease. See Frobig v. Gordon, 124 Wn.2d 732, 736, 881 P.2d 226 (1994); Maas v. Perkins, 42
Wn.2d 38, 43-44, 253 P.2d 427 (1953). Under RCW 59.18.130(5), it is the tenant’s duty to prevent
a nuisance on the rental premises. Edsel produced no evidence that the tenants’ noise or burning
activities were contemplated when the lease was signed. Accordingly, we affirm the dismissal of
Edsel’s noise and burning nuisance claims against the landlords.
We note, however, that this principle does not apply to the vegetation nuisance claims
against the landlords because there was no evidence that the tenants were responsible for
controlling vegetation on Gill and Bowman’s property.
3. Exclusion of Dr. Shaha and Herzog declarations
Edsel argues that the trial court erred by striking Dr. Shaha’s and Herzog’s declarations.
We disagree.
a. Dr. Shaha declaration
To support his response to the defendants’ 2019 summary judgment motion, Edsel
submitted an unsigned declaration from Dr. Shaha, Edsel’s and Lamb’s physician. The trial court

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struck the declaration and did not consider it because the declaration “was submitted unsigned and
undated, and thus inadmissible.” CP at 1283.
Although we typically review a trial court’s evidentiary rulings for abuse of discretion,
appellate courts “review de novo a trial court’s evidentiary rulings made in conjunction with a
summary judgment motion.” Portmann v. Herard, 2 Wn. App. 2d 452, 463, 409 P.3d 1199 (2018).
Under CR 56(e), unsigned affidavits are inadmissible and “should not be considered in ruling on
summary judgment motions.” Our Lady of Lourdes Hosp. v. Franklin County, 120 Wn.2d 439,
452, 842 P.2d 956 (1993). The trial court properly struck Dr. Shaha’s unsigned declaration.
The trial court also properly denied Edsel’s CR 56(f) motion for a continuance to obtain
Dr. Shaha’s signature, noting that Edsel failed to “provide[] a reasonable justification” for why he
needed more time to get a signed copy of Dr. Shaha’s declaration. CP at 1283. We review a trial
court’s CR 56(f) ruling for abuse of discretion. West v. Seattle Port Comm’n, 194 Wn. App. 821,
834, 380 P.3d 82 (2016). The trial court may deny a CR 56(f) motion if “‘the moving party does
not offer a good reason for the delay in obtaining the evidence.’” Id. at 833 (quoting Coggle v.
Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990)).
Here, it was Edsel who alleged that smoke from the defendants’ fire pit damaged his and
Lamb’s health. Edsel filed his complaint in January 2018, and he had ample time to obtain a signed
declaration from Dr. Shaha. We affirm the trial court’s decision to deny Edsel’s motion for a
continuance because he did “‘not offer a good reason for the delay in obtaining the evidence.’” Id.
(quoting Coggle, 56 Wn. App. at 507).

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b. Herzog declaration
Edsel argues that the trial court erred by striking Herzog’s declaration on the grounds that
it did not state that it was certified or declared under the laws of Washington, as required by RCW
9A.72.085(1). We disagree.
Under RCW 9A.72.085(1), whenever a sworn affidavit is required in a proceeding, it must:
(a) Recite[] that it is certified or declared by the person to be true under penalty of
perjury;
(b) Is subscribed by the person;
(c) State[] the date and place of its execution; and
(d) State[] that it is so certified or declared under the laws of the state of
Washington.
The Herzog declaration stated that it was made “[p]ursuant to Texas Civil Practice and Remedies
Code Section 132.001(d)” by David Herzog “under penalty of perjury.” CP at 915. But the
declaration was not “certified or declared under the laws of the state of Washington.” RCW
9A.72.085(1). Nor has Edsel argued below or on appeal that the applicable laws of Texas are
comparable to the applicable laws of Washington.
Herzog contends that the reference to penalties for perjury is enough to incorporate
penalties under Washington law. But that is inconsistent with the statute’s plain language, which
requires both the penalty of perjury language and the language ensuring the declaration is made
under the laws of Washington. Id. Herzog’s declaration did not meet Washington’s requirements
for a valid declaration and the trial court properly rejected it.
4. Trial court’s dismissal of remaining nuisance and trespass claims
Edsel argues that the trial court erred by dismissing his four remaining nuisance claims and
two remaining trespass claims because genuine issues of material fact existed for each of these

No. 53461-4-II
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claims. We reverse the dismissal of the burning nuisance claim against the tenants but otherwise
affirm the trial court’s 2019 summary judgment order dismissing all of Edsel’s remaining claims.
a. Nuisance and trespass elements
A plaintiff may bring a nuisance action “based on intentional, reckless, or negligent
conduct.” Hurley v. Port Blakely Tree Farms L.P., 182 Wn. App. 753, 769, 332 P.3d 469 (2014).
In an action for negligent nuisance, the plaintiff must establish the negligence elements of duty,
breach, causation, and damages. Donner v. Blue, 187 Wn. App. 51, 65, 347 P.3d 881 (2015). The
plaintiff typically must prove that the alleged nuisance “‘interfere[d] unreasonably with [their] use
and enjoyment of their property.’” Moore v. Steve’s Outboard Serv., 182 Wn.2d 151, 155, 339
P.3d 169 (2014) (quoting Tiegs v. Watts, 135 Wn.2d 1, 13, 954 P.2d 877 (1998)); see also RCW
7.48.120.
Similarly, a plaintiff may bring a trespass action based on either a negligent or intentional
intrusion onto the plaintiff’s property. Hurley, 182 Wn. App. at 771. “‘Negligent trespass’ requires
proof of negligence (duty, breach, injury, and proximate cause).’” Id. (internal quotation marks
omitted) (quoting Pruitt v. Douglas County, 116 Wn. App. 547, 554, 66 P.3d 1111 (2003)).
b. Marijuana grow nuisance
Edsel argues that the trial court erred by dismissing his marijuana grow nuisance claim
because the marijuana plants next door unreasonably interfered with the use and enjoyment of his
property. We disagree.
Edsel may have rebutted the defendants’ contention that the marijuana plants were legal
because he and his landscapers alleged that they saw dozens of marijuana plants. But Edsel
provided no evidence that his ability to use or enjoy his own property decreased due to the

No. 53461-4-II
15
marijuana plants next door, regardless of the quantity. Edsel also declared that some marijuana
grow operations can be associated with violence and crime. These statements do not contain
specific facts, as CR 56(e) requires, alleging that any violence or crime occurred in this case. Mere
allegations or conclusory statements unsupported by evidence do not establish a genuine issue of
material fact. See Martin, 191 Wn.2d at 722; Lane, 154 Wn. App. at 286-87. We affirm the
dismissal of Edsel’s marijuana grow nuisance claim.
c. Noise nuisance
Edsel argues the trial court erred by dismissing his noise nuisance claim because the
defendants’ use of noisy motorized vehicles unreasonably interfered with the use and enjoyment
of his property. Lamb stated that noise “interrupt[ed] the peaceful and quiet enjoyment and use of
our residence,” and pointed to noise caused by the defendants warming up a car at early morning
hours, for example. CP at 901. Edsel stated that the defendants “engag[ed] in noise . . . activities
designed to force my wife and [me] out of our residence” and described the noises as continuous
and very loud for a period of hours. CP at 906-07, 989-90. Real estate broker David McDonald’s
declaration alleges that the noises would reduce Edsel’s property values. CP at 962.
These declarations establish that the tenants made noise, but Edsel has not offered specific
facts showing that the volume, frequency, or duration of that noise exceeded ordinary and
reasonable levels. His noise nuisance claim thus does not meet CR 56(e)’s requirement that
plaintiff present “specific facts showing that there is a genuine issue for trial.” Because Edsel’s
declarations are conclusory and lack adequate factual support, we affirm the dismissal of Edsel’s
noise nuisance claim.

No. 53461-4-II
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d. Burning nuisance and trespass
Edsel argues that the trial court erred by dismissing his burning nuisance and trespass
claims because smoke and particulate matter from the defendants’ fire pit wafted onto his property,
entered his home, and harmed his and Lamb’s health. We reverse the trial court’s summary
judgment dismissal of the burning nuisance claim against the tenant defendants.4
Edsel claimed that smoke and particulate matter from the defendants’ fire pit “left a filthy
film of soot . . . on [his] . . . furniture and clothes” and brought a “disgusting and sickening smell
or stench in the air while the smoke comes towards and inside our residence.” CP at 907. Edsel
and Lamb declared that the particulate matter bothered their lungs and the smell nauseated them.
Taking Edsel’s and Lamb’s declarations as true, they establish a genuine issue of material fact as
to whether the tenants’ burning unreasonably interfered with Edsel and Lamb’s enjoyment of their
property. Edsel’s and Lamb’s declarations contain specific facts alleging that the burning occurred
daily for a period of time, caused soot to accumulate in their home, and the odor was repulsive,
acrid, and nauseating. Even without a doctor’s declaration, Edsel and Lamb described physical
symptoms sufficient to establish a genuine issue of material fact with regard to harm. We reverse
the summary judgment dismissal of the burning nuisance claim against the tenants.
Edsel asserts that the trial court should not have dismissed his smoke trespass claim. But
the Washington Supreme Court has affirmed summary judgment against plaintiffs who brought
trespass claims involving transitory substances or materials that quickly dissipate because those
substances do not, “as a matter of law, ‘interfere with a property owner’s possessory rights.’”
Wallace v. Lewis County, 134 Wn. App. 1, 16, 137 P.3d 101 (2006) (quoting Bradley v. Am.
4 As explained above, we affirm the dismissal of the burning nuisance claim against the landlords.

No. 53461-4-II
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Smelting & Ref. Co., 104 Wn.2d 677, 691, 709 P.2d 782 (1985)). Smoke is a transitory substance
that dissipates. As a matter of law, Edsel has not shown a genuine issue of material fact for his
smoke trespass claim.
e. Vegetation nuisance and trespass
Edsel argues that the trial court erred by dismissing his vegetation nuisance and trespass
claims because the defendants allowed ivy on their side of the property to grow over and under a
retaining wall. We disagree.
In nuisance actions based on encroaching vegetation, the plaintiff must show actual
damages from the encroaching vegetation, and the mere fact that vegetation extends onto the
plaintiff’s property does not constitute a nuisance. Gostina v. Ryland, 116 Wash. 228, 232, 199 P.
298 (1921); see Moore, 182 Wn.2d at 155. Estrada’s and Osorio’s declarations state that the ivy
appeared to have only leaves and stems on Edsel’s property but that its roots appeared to originate
in Gill and Bowman’s property. Edsel’s supporting declarations also asserted that his retaining
wall and fence were damaged by the ivy from the defendants’ side of the fence and that ivy from
the defendants’ property entered a drainpipe that had an opening on the defendants’ property,
plugged the pipe, and flooded his property.
But Edsel failed to show the existence of a genuine issue of material fact regarding the
essential element of causation, which he would have the burden of proving at trial. See Donner,
187 Wn. App. at 65. Edsel declared that he saw “large plugs of distinct plant root and stem matter”
that were “consistent” with ivy in his drainpipe, but he only speculates that the ivy in his drainpipe
originated on Gill and Bowman’s property. CP at 905. None of the evidence properly before the
trial court contained specific facts as required by CR 56(e) to establish that any damage to Edsel’s

No. 53461-4-II
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drainpipe and other parts of his property was caused by ivy originating in the defendants’ yard.
See Martin, 191 Wn.2d at 722; Lane, 154 Wn. App. at 286-87; Young, 112 Wn.2d at 225-26. We
affirm the dismissal of Edsel’s vegetation nuisance claim.
With regard to trespass, Edsel’s failure to show causation or damage is also fatal because
a plaintiff claiming negligent trespass has the burden of establishing proximate cause. Hurley, 182
Wn. App. at 771-72. Like his nuisance claim, Edsel’s ivy trespass claim fails because he did not
show the existence of specific facts sufficient to prove the necessary element of causation. We also
affirm the dismissal of Edsel’s vegetation trespass claim.
5. Alleged attorney admission
Edsel argues that the trial court erred by granting the defendants’ 2019 summary judgment
motion and by not granting his motion for reconsideration on the basis that the landlords’ lawyer
made a dispositive judicial admission conceding liability by stating at the summary judgment
hearing, “[O]f course, my clients deny everything. But for purposes of this motion, we’re accepting
as true Mr. Edsel’s allegations.” CP at 1382.
To bind a party, an attorney’s admission must be a “‘distinct and formal’” statement “‘made
for the express purpose of dispensing with the formal proof of some fact at the trial.’” Thurston
County v. W. Wash. Growth Mgmt. Hr’gs Bd., 164 Wn.2d 329, 354 n.14, 190 P.3d 38 (2008)
(internal quotation marks omitted) (quoting Dodge v. Stencil, 48 Wn.2d 619, 622, 296 P.2d 312
(1956)). Gill and Bowman’s lawyer did not admit Edsel’s version of the facts was true when he
explained that his clients denied Edsel’s version of the facts, but acknowledged the summary
judgment standard. We reject this argument.

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III. ATTORNEY FEES
A. Trial Court’s Denial of Edsel’s Attorney Fees Request
Edsel argues that the trial court should have awarded attorney fees to him instead of to the
defendants. We review an award of attorney fees for abuse of discretion. Dalsing v. Pierce County,
190 Wn. App. 251, 261, 357 P.3d 80 (2015). Here, the trial court awarded attorney fees to the
defendants under RCW 4.84.185, which authorizes an attorney fees award to the prevailing party
for defending a frivolous action. Because we reverse the trial court’s dismissal of Edsel’s burning
nuisance claim against the tenant defendants, we direct the trial court to reconsider attorney fees
on remand.
B. Attorney Fees on Appeal
On appeal, the tenants seek attorney fees under RAP 18.1. Under RAP 18.1(a) and RCW
4.84.185, we may award attorney fees to the prevailing party if the other party’s appeal was
frivolous. Because we reverse the trial court’s dismissal of Edsel’s burning nuisance claim against
the tenants and because the majority of Edsel’s other arguments were not frivolous, we deny the
tenant defendants’ request for attorney fees on appeal.
CONCLUSION
We reverse only with regard to the burning nuisance claim against the tenants and remand
to the trial court to reconsider its award of attorney fees in light of our opinion. We conclude that
the 2018 partial summary judgment ruling is not before us, and we otherwise affirm the 2019
summary judgment ruling dismissing Edsel’s other claims. We deny the tenant defendants’ request
for attorney fees on appeal.

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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.
Glasgow, J.
We concur:
Lee, C.J.
Maxa, J.