FILED
DECEMBER 12, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ROD L. SMITH and BECKY R. SMITH, ) No. 36091-1-III
)
Appellants, )
)
v. )
) UNPUBLISHED OPINION
DWIGHT GOEHNER and )
CAROL GOEHNER, )
)
Respondents. )
LAWRENCE-BERREY, C.J. — The Smiths appeal after the trial court partially
granted summary judgment and the jury rejected their remaining trespass claims. They
argue the trial court erred in partially granting summary judgment, and erred again in
denying admission of one of their proposed exhibits. Determining that the Smiths’
arguments were not properly preserved, we affirm.
FACTS
On April 14, 2015, Rod Smith and Becky Smith filed this lawsuit against Dwight
Goehner and Carol Goehner for trespass and nuisance. The Smiths alleged that the
Goehners trespassed onto their property in 2013 by installing a segment of polyvinyl
chloride (PVC) irrigation line within their property along a different route than the
original metal irrigation pipe. The Smiths requested the court order the Goehners to
remove the PVC line and pay trespass and nuisance damages.
No. 36091-1-III
Smith v. Goehner
About one year later, on April 15, 2016, the Smiths sent a letter to the Goehners
asking them to fix the PVC line because it had broken and was flooding their property.
The Smiths wanted the PVC line and its debris removed, and for the Goehners to install a
new line across a suitable location. The Smiths informed the Goehners that they had laid
out markers where the line could be installed and asked the Goehners to draft a proper
easement agreement.
On April 29, 2016, the Goehners’s attorney sent an e-mail to the Smiths
confirming his clients’ agreement to relocate the line as marked and remove the PVC
debris. He also attached a draft easement document for the Smiths’ review, copying the
Goehners since they had not yet reviewed the draft. The Smiths replied by e-mail on the
same day indicating that the easement document was mostly acceptable and that they
were willing to resolve the dispute. The Smiths requested that the line be installed by
professional excavators and buried three feet deep. The Smiths also requested $800 to
resolve the trespass claim against the Goehners. Later that same day, the Goehners
directly e-mailed the Smiths, notifying them that a work crew would remove the broken
PVC line and debris the following day.
On April 30, 2016, the Smiths reiterated their rejection of any excavation,
installation, or surveying not done by professionals. The Smiths asserted that the
2
No. 36091-1-III
Smith v. Goehner
Goehners would not be allowed on the property until the trespass claim was resolved.
On May 2, 2016, the Goehners’ attorney e-mailed the Smiths that there was only a
small section of PVC line that needed to be installed on the Smiths’ property and that the
new line would follow the flagged location. The attorney also attached a finalized
easement document incorporating changes requested by the Smiths. The Goehners
insisted on finalizing and signing the document first, rather than waiting for the survey,
because the survey could take weeks or months and the Goehners’ crop would be a total
loss without water. The Goehners rejected the Smiths’ offer to resolve the trespass claim
for $800.
The same day, the Smiths responded that they had appointments with a surveyor
and excavation company to get the work started. The Smiths also contacted a
professional, Keegan Bray, and received a quote from him to excavate and lay the new
PVC line. The Smiths showed Mr. Bray stakes along the ground, indicating where they
wanted the irrigation line to be relocated.
The Smiths then e-mailed the Goehners that they contacted two professionals who
could excavate, install, and survey the location of the new line so to get the easement
document signed. The Smiths added, if the Goehners wished to install the new line that
week, the Goehners would have to comply with the Smiths’ terms.
3
No. 36091-1-III
Smith v. Goehner
The Smiths listed those terms as: (1) all work would be done at the Goehners’ cost,
(2) the line would be installed by professionals, and (3) the workers must let the Smiths
know before they accessed the Smiths’ property to perform the work. The Smiths
provided the Goehners with the quotes from the professionals.
On May 3, 2016, the Goehners answered the complaint and generally denied the
allegations of trespass and asserted an affirmative defense that the 2013 PVC line was
located where it had historically been located. The Goehners asserted the Smiths agreed
to allow the Goehners to move the line to a different area on the Smiths’ property, but the
Smiths had made unreasonable demands and imposed unreasonable conditions. The
Goehners also filed a motion for a temporary restraining order (TRO) to restrain the
Smiths from directly or indirectly interfering, impeding, interrupting, or preventing the
Goehners from connecting their irrigation line to receive water.
At the TRO hearing, the court recognized the parties may have come to an
agreement that could be completed by the end of the week. The Smiths affirmed that the
e-mail on May 2, 2016, contained their ultimate goals. The contractor was prepared to
start work immediately, the Smiths were willing to show the Goehners exactly where to
excavate the line, and the Smiths spoke to a surveyor who could perform the survey after
4
No. 36091-1-III
Smith v. Goehner
the line was installed. Because of a likely solution between the parties, the court denied
the motion for a TRO.
On May 3, 2016, Mr. Goehner contacted Mr. Bray and met him on site to review
the proposed irrigation line location. The stakes were in the same location the Smiths
showed Mr. Bray previously. Mr. Bray performed the excavation and installation work
between May 4 and May 6, 2016, along the staked course. One or both of the Smiths
were on site throughout Mr. Bray’s work. Neither stated that the line was in the wrong
place. Mr. Goehner paid Mr. Bray. Later in May, the Goehners had the line surveyed so
an accurate legal description could be included in the easement document. The
Goehners’ lawyer then sent the proposed easement to the Smiths’ lawyer, but never heard
back, despite repeated attempts to contact him.
On August 1, 2017, the Goehners filed a motion for a TRO and preliminary
injunction because the Smiths had threatened to cut off their irrigation water through the
relocated PVC line. The Goehners asserted that in May 2016, they had relocated the
irrigation line along the course marked by the Smiths, they had paid for the excavation,
installation, and survey work, and they had finalized the easement document prepared at
their expense. The Goehners also asserted they provided the easement document to the
5
No. 36091-1-III
Smith v. Goehner
Smiths but the Smiths never signed it. The trial court issued a preliminary injunction
forbidding the Smiths from disrupting the Goehners’ irrigation water.
On September 22, 2017, the Goehners filed an amended answer and affirmative
defenses to the Smiths’ complaint, and a counterclaim against to the Smiths. The
Goehners’ counterclaim asserted that e-mails between the parties in April and May 2016
constituted an agreement, and that the Goehners had performed their obligations under
the agreement. In their answer to the counterclaim, the Smiths denied the existence of
any sort of settlement agreement. They contended the agreement was only for a
temporary relocation of the water line, not a permanent one. On February 16, 2018, the
Smiths filed an amended complaint for common law and statutory trespass.
On March 1, 2018, the Goehners moved for summary judgment, asserting that they
had complied with the Smiths’ May 2, 2016 e-mailed terms, that the trial court should
order the Smiths to sign the easement document, and it should also dismiss the Smiths’
trespass claims. In their summary judgment response, the Smiths reiterated that the
relocation was intended to be only temporary, and that the Goehners had failed to perform
the agreement within a week.
On March 29, 2018, the trial court heard argument. The trial court concluded that
no reasonable trier of fact could find that the Smiths’ terms in the e-mails could be
6
No. 36091-1-III
Smith v. Goehner
construed as a temporary resolution. However, it also concluded that the Goehners did
not perform because they failed to relocate and survey the line within one week, accepting
at face value the Smiths’ assertion that the one-week time frame was an essential
component of the parties’ agreement.
On April 5, 2018, the Goehners filed a motion for reconsideration. In their motion,
they argued that time was not an essential component to the agreement, because time was
only essential to them so they could deliver water to their orchard. They also argued that
they performed their obligations as quickly as feasible and within a reasonable time. The
Smiths opposed the Goehners’ motion for reconsideration.
On April 13, 2018, the trial court heard argument. During a colloquy with the
court, the Smiths acknowledged that they had marked where the new line should be
relocated, and that Mr. Bray installed the line at that location by May 6, 2016—during the
same week of the May 2, 2016 e-mailed offer.
The trial court partially granted the Goehners’ motion for reconsideration. In
doing so, the court reasoned:
So, let’s say that the Court accepts [the Goehners’] position that . . . a
solution was negotiated that then [the Goehners] took steps, you know, let’s
view it as an oral contract and [the Goehners] took steps to carry out their
end of the agreement by . . . paying to have a line installed in the place
where the Smith’s had indicated, that the Smith’s had the opportunity to
view that and see that being installed and then [the Goehners] paid for a
7
No. 36091-1-III
Smith v. Goehner
surveyor to survey that and reduced it to an easement, but the easement
never got signed.
....
It appears to the Court that the parties entered into an oral contract
regarding placement of a new waterline and the oral agreement included
that it was going to be in a place that was staked out by the Smiths and that
the Goehners needed to get it surveyed and then that’s where the easement
would be.
Pretrial Report of Proceedings (PRP) at 55-56, 79 (emphasis added).
The court granted partial summary judgment as to the location of the line and for
an easement to be granted for that location. The court scheduled a hearing for presenting
it with a proposed written easement, and requested supplemental briefing on whether the
form of easement was a jury question.
At the next hearing, instead of presenting a proposed easement document, the
Goehners argued that the agreement was a global agreement, and the Smiths’ trespass
claims should also be dismissed. The trial court disagreed. It then determined that the
phrasing of the easement was a question of law for the court, reasoning: “[T]he Court’s
decision to enforce a CR 2A agreement and the enforcement of a CR 2A agreement is not
something that would properly be determined by a jury.” PRP at 126.
The Smiths’ trespass claims, which the Goehners had refused to settle for $800,
proceeded to trial. At trial, the Smiths attempted to admit their proposed exhibit 11, a 43-
page document. The Smiths insinuated that the document contained admissions that the
8
No. 36091-1-III
Smith v. Goehner
line installed in 2013 was not located along the historical line. The Goehners objected.
After examining the proposed exhibit, the trial court noticed it contained settlement
discussions, and refused under ER 408 to admit it. The Smiths then reduced the 43-page
submission to 2 pages. Because the 2 pages still contained settlement discussions, the
trial court refused to admit the reduced submission.
The jury returned a verdict finding that the Goehners were not liable to the Smiths
on their trespass claims. The Smiths timely appealed.
ANALYSIS
A. SUMMARY JUDGMENT
The Smiths argue the trial court erred when it granted the Goehners’ motion for
summary judgment. Specifically, the Smiths argue: (1) no enforceable CR 2A agreement
was reached by the parties, (2) the e-mail exchanges lack the formality of a deed, and
(3) the Goehners did not establish sufficient partial performance to avoid application of
the statute of frauds.
Before we can even address these arguments, we must determine whether they
were preserved for appeal. “An argument that was neither pleaded nor argued to the
superior court on summary judgment cannot be raised for the first time on appeal.”
Johnson v. Lake Cushman Maint. Co., 5 Wn. App. 2d 765, 780, 425 P.3d 560 (2018);
9
No. 36091-1-III
Smith v. Goehner
Sourakli v. Kyriakos, Inc., 144 Wn. App. 501, 509, 182 P.3d 985 (2008); see also
RAP 2.5(a) (Appellate courts generally will not review a claim of error not raised in
the trial court.). Here, none of the three arguments the Smiths raise on appeal were
ever pleaded or argued in the trial court. We conclude these arguments may not be
raised on appeal for the first time.
We note that the basis of the trial court’s summary judgment ruling was its
determination that the parties had an oral contract. In a later hearing, the trial court did
confusingly refer to CR 2A. But this reference does not permit us to ignore the basis of
the trial court’s ruling, that the parties had an oral contract.1
B. EXCLUSION OF EVIDENCE AT TRIAL
The Smiths contend the trial court erred by not admitting a statement contained in
their proposed exhibit 11. The statement, a short sentence written by the Goehners’
attorney, seemingly admits that the 2013 PVC line was located along a different route
than the historical line.
1
The trial court twice described the parties’ agreement as an oral contract. We
believe the trial court misspoke. The trial court determined that the parties had a contract
because the Smiths’ May 2, 2016 e-mail constituted an offer that the Goehners accepted
by performance. An offer that is accepted by performance is a unilateral contract. Storti
v. Univ. of Wash., 181 Wn.2d 28, 35-36, 330 P.3d 159 (2014).
10
No. 36091-1-III
Smith v. Goehner
The problem with the Smiths’ argument is that they did not seek to admit only this
statement. Rather, they first sought to admit the entire 43-page document, and then a 2-
page submission, both of which contained settlement discussions. The Smiths do not
contend that the trial court erred in concluding that both submissions contained settlement
discussions and were inadmissible under ER 408. Instead, they ask us to reverse the trial
court for refusing to admit a short statement contained in the 2-page document. Because
the Smiths never requested the trial court to admit only this short statement, the issue has
not been preserved for our review. RAP 2.5(a).
C. ATTORNEY FEES
Both parties request attorney fees, if successful on appeal. As the prevailing party,
the Goehners seek an award of attorney fees under RAP 18.9 for defending an appeal that
is frivolous. RAP 18.9 permits an appellate court to order a party or counsel who files a
frivolous appeal to pay the harmed party compensatory damages, including reasonable
attorney fees. Under Washington law, “an appeal is frivolous if, considering the entire
record and resolving all doubts in favor of the appellant, the court is convinced that the
appeal presents no debatable issues upon which reasonable minds might differ, and that it
is so devoid of merit that there is no possibility of reversal.” Ramirez v. Dimond, 70 Wn.
App. 729, 734, 855 P.2d 338 (1993). All doubts regarding frivolity are resolved in favor
11
No. 36091-1-III
Smith v. Goehner
of the appellant. Carner v. Seattle Sch. Dist. No. 1, 52 Wn. App. 531, 540, 762 P.2d 356
(1988).
Here, the Smiths raised a debatable issue as to why the parties' e-mails are
inadequate to form a CR 2A stipulation. Partly for a procedural reason, we did not reach
this issue. But because the issue was debatable, we decline the Goehners' request to
impose attorney fee sanctions against the Smiths.
Affirmed.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, C.J.
WE CONCUR:
Siddoway, J.
Pennell, J.
12