### FILED July 23, 2013 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE 

### MIKE WALCH and MARCIA WALCH, ) Husband andwife, ) ) Appellants, )

, 

# j )**~** I 

### v. ) 

### f 

# 1 KERRYA. CLARK andPATRICIAL. ) ) 

# I I CLARK, husband and wife; W.L. CLARK ) FAMILY, LLC, a Washington Limited ) Liability Company; ROBERT C. ) 

# I I**~** ) FOLKMAN and PATRICIA W. ) FOLKMAN, husband andwife, ) Respondents. ) No. 30129-0-111

UNPUBLISHED OPINION

KORSMO, C. 

### J.

- This is an action toattemptto obtain an easementbynecessity
across commercial property for the benefit ofothercommercialproperty owners. The trial courtdismissedthe common lawtheories ofreliefat summaryjudgmentandthen rejectedthe statutory theory afterbenchtriaL We affirm the trial court'srulings concerningthe easement andpartially affirm the attorney fees award. Weremand for the 

## j courtto segregate its fee award and considerrespondents' CR 11 argument. Whether 

# \ respondents are entitledto attorney fees on appeal will be determined bythe outcome of
1 

# I theremand.

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### ! !**~** i 1No. 30129-0-111 Walch v. Clark respondents are entitled to attorney fees on appeal will be determined by the outcome of the remand. FACTS Mike and Marcia Walch own Rainier Skyline Excavators, Inc. (RSE), a company that designs and builds portable hydraulic track drive skyline excavators. In 2000, the Walches became interested in buying some property in Cle Elum, Washington. They wanted to use the property, which included a pond known as the DaIle Pond, to demonstrate, display, and sell RSE's machinery as well as to manufacture excavators. Many components used to assemble the excavators must be transported on extra-long lowboy trailers, called superloads. These superloads can be up to 165 feet in length and
can carry several hundred thousand pounds. The Walches purchasedthe property in May 2004. The real estate contract identifies the Walches' access to the property by way ofan existing easement over the property located to the east ofthe Walches' property, then continuing east over and
across the Burlington Northern SantaFe (BNSF) railroad corridor, and then proceeding north over and across the BNSF railroad crossing to Owens Road, "so long as the railroad shall allow." Ex 1. At that point, Owens Road becomes a public right-of- way owned by the city ofCleElum (City). The City has aprivate agreement with the Owens family to use Owens Road south ofthe BNSF railroad crossing to access the City's sewage treatmentplant. A trucking 2No. 30129-0-111 Walch v. Clark
company and several private residents all use the BNSF crossing on Owens Road for
access to their respective properties, but they do not have permits from BNSF to cross the railroad right-of-way. The respondents in this action, the Clarks and the Folkmans, own property located to the west ofthe Walches' property, in the SwiftwaterBusiness Park. All the property owned by the parties in this action is presently zoned by the City as being within its Industrial District. I On August 9,2010, the Walches filed suit for a 30-foot easement across the respondents' properties. The Walches alleged that a road existed at this location, and that they used this road to access the property when they were deciding whether to purchase.2 The Walches claimed an easement implied from prioruse and/or prescription or, alternatively, an easementby necessity pursuant to RCW 8.24.010. The trial court dismissed the common law claims for prescriptive easement or implied easementby prioruse before trial. However, the statutory claim proceededto bench trial, where the Walches claimed they were entitled to an easementby necessity because their property was effectively landlocked for several reasons: (1) they had no legal, insurable access overthe railroad right-of-way, and (2) as apractical matter they

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### See chapter 17.36 ofthe Cle Elum Municipal Code. 2The respondents disputed this claim, and the trial court found that there was no evidence that a road ever existed at this location. 3No. 30 129-0-III Walch v. Clark
could notphysically enter orexittheproperty because the super-lowboy trailers could not
use Owens Road.3 Mr. Walchtestified that he had not taken any steps to submit any land use applications for the property because he did notwant to do any studies orplans until they had legal access to the property. He also acknowledgedthat he had not hired any engineers to examine the route feasibility or made any attempts to obtain an estimate of the cost ofimproving Owens Road for the use ofthe super-lowboys. Additionally, he testified thatthe Walches could not get their access insured becausethey do nothave a BNSF permitted easement for access to their property. The Walches had not sought a permitto cross the railroad at Owens Road. City administrator Matt Morton testified thatthe Walches hadnever submitted any land use applications, their intended use ofthe property would be a conditional use, there
was no guaranteethatthe Walches would be permittedto use the property for RSE, and it
was premature to give an opinion onwhether the City would grant a permit ofany kind. He also testified thatthe DallePond on the Walchproperty is classified as a category three wetland, which could further complicatethe land use permitprocess.

3 Inparticular, they alleged thatthe superloads couldnot negotiate the turns at Owens Road, which also was too narrow, and the trailers would get high centered onthe railroad tracks. 4No. 30129-0-111 Walch v. Clark
The trial court dismissedthe Walches' RCW 8.24.010 claim withoutprejudice, finding thatthe Wa1ches hadphysical access totheirproperty overthe BNSF railroad crossing andthat until such access was denied orwithdrawnthe Walches could make use and enjoyment oftheirproperty for those uses authorized by the City within the industrial
zone. The court concludedthatthe property was not landlocked and there was no guaranteethatRSE could be situated onthe property. Respondents requested attorney fees and costs underRCW 8.24.030 for defending all three easementclaims. Findingthatthe claims all involved the same underlying set of facts and were so interrelatedthat segregation offees was not required, thetrial court awarded attorney fees for defending all three claims. The Wa1ches then timely appealed to this court. ANALYSIS The Wa1ches challenge the court's statutory easementruling andthe attorney fee awards. All parties seek attorney fees on appeal. We will first discuss the easement ruling before turning to the fee arguments. Easement The trial court determined thatthe Wa1ches had "notestablished a reasonable necessity for a private way ofnecessity becausetheirproperty is not landlocked and because they haveno guarantee that a future use oftheirproperty would include situating

5No. 30129-0-111 Walch v. Clark
the RSE, Inc. manufacturing business on the property." Clerk's Papers (CP) at 251. We agree with both ofthose assessments and affirm the denial ofthe easement. This matterwas tried onthe authority ofRCW 8.24.010 thatprovides: An owner, or one entitled to the beneficial use, ofland which is so situate with respect to the land ofanotherthat it is necessary for its properuse and enjoyment to have and maintain a private way ofnecessity
... on, across, over orthrough the land ofsuch other
... may condemn andtake lands of such other sufficient in area for the construction and maintenance ofsuch private way ofnecessity.
. .. The term "private way ofnecessity," as used in this chapter, shall mean and include a right ofway on, across, over or through the land ofanother for means ofingress and egress. This statute is "not favored in law and thus must be construed strictly." Brown v. McAnally, 97 Wn.2d 360,370,644 P.2d 1153 (1982). To condemn a private way of necessity, the Wa1ches needed to show that access over the respondents' property was reasonably necessary for the proper use and enjoyment oftheirproperty. See id. The landowner's necessity does not have to be absolute, but it must be reasonably necessary under the facts ofthe case. State ex reI. Polson Logging Co. v. Superior Court, 11 Wn.2d 545, 562-63, 119 P.2d 694 (1941). It is insufficient to show that the proposed route is more convenient or advantageous than anotherroute. State ex. reI Carlson v. Superior Courtfor Kitsap County, 107 Wash. 228, 232, 181 P. 689 (1919). The party seeking to condemnthe private way bears the burden ofproving the reasonable necessity, including the absence ofaltematives. Noble v. Safo Harbor Family Pres. Trust, 167 Wn.2d 11, 17,216 P.3d 1007 (2009).
6No. 30129-0-111 Walch v. Clark However, "apotential condemnor should notbeprevented from condemning a private way ofnecessity merely because the condemnor may enjoy thepermissiveuser of
a 'way.'" Brown, 97 Wn.2d at 368. The WaIches primarily rely upon this quote from Bro",!n, arguing that although they currently have access to the property, they have no legally protected access and are entitled to pursue theirprivate condemnation action. We agree. The existence ofan access route does not bar aprivate condemnation action under the statute.4 

### Id. at 366-68. Existing access, however, is evidencethat can be considered in adjudgingthe necessity ofthe proposedprivate condemnation action. That is how the trial courttreated the matter. The existing access is strong evidencethatthe property is not currently landlocked. There also was evidence thatthe Walches had not undertaken efforts to determine the feasibility ofobtainingpermission from BNSF railroad or ofimproving the existing access route to accommodate the superloads RSE would need to use. In light of these facts, the trial court did not err in determining thatthe property was not landlocked. The trial court also determined that necessity had notbeen establishedbecause it
was only speculative that RSE would be able to use the property for its intended

4The Walches seek to extendBrown and apply the statute to condemn a new route rather than obtain legal standing to their existing route. In light ofouragreement with the trial courtthatthe WaIches did not prove the necessity for private condemnation, we do not address thepropriety oftheirproposedroute or oftheir argument for extending Brown. 7

### No. 30129-0-111 Walch v. Clark
purposes. The testimony showed that a conditional use permitwould be necessary to address zoning related restrictions on the property and there also were environmental
concerns to address. Given these hurdles, it was understandable that the superloads might never need to.access the property. 

### In Brown, the would-be condemners received approval oftheir proposed development on various conditions that includedthe need to obtain an easement permitting access to the property. Id. at 364-65. The Walches approached the matter from the opposite perspective by attempting to obtain their access before seeking approval oftheir development plans. While there is no legal impedimentto using this approach, the uncertainty ofthe property's future use is a proper fact for the trier offact to consider in assessing the necessity ofthe proposedprivate condemnation. The record supported the trial court's determination that the Walches had not established the necessity oftheirproposedprivate condemnation. The property was not currently landlocked and it was uncertain whether future access would be inadequate. We thus affirm that aspect ofthejudgment. AttorneyFees The Walches attackthe trial court's ruling assessing fees againstthem for defense ofthe common law claims as well as the reasonableness ofthe fee award. All parties seek attorney fees on appeal and the respondents also suggest alternative bases for upholding the fee award. We conclude that the trial court erred in not segregating the fee 8No. 30129-0-111 Walch v. Clark awards, the fees were otherwise reasonable, and we remand for consideration ofthe CR 11 claim that was raised, butnot decided, at trial. The Walches are not awarded any fees for the appeal; whetherrespondents obtain appellate attorney fees is dependent upon the outcome ofthe remand. We approach the fee question in a slightly different mannerthan it was presentedby the parties. RCW8.24.030. Attorney fees in a private condemnation action are governedby RCW 8.24.030, which provides in relevant part: In any action brought underthe provisions ofthis chapter for the condemnation ofland for a private way ofnecessity, reasonable attorneys' fees and expert witness costs may be allowed by the court to reimburse the condemnee. This courtreviews a trial court's award ofattorney fees for an abuse ofdiscretion. Mahler v. Szucs, 135 Wn.2d 398, 435,957 P.2d 632 (1998). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). Attorney fees should be awarded only for services related to causes ofaction that allow for fees. Absher Constr. Co. v. Kent Sch. Dist. No. 415, 79 Wn. App. 841, 847, 917 P.2d 1086 (1995). Iffees are authorized for only some ofthe claims, the fee award must properly reflect a segregation oftime spent on issues for which fees are authorized from time spent on other issues. Hume v. Am. Disposal Co., 124 Wn.2d 656,672,880 P.2d

9No. 30129-0-111 Walch v. Clark
988 (1994). However, ifthe claims are so related that no reasonable segregation can be made, the court does not need to require segregation. See id. at 673. In awarding attorney fees, Washington courts apply the lodestar method and the trial court must enter findings offact and conclusions oflaw supporting its decision to award fees. Mahler, 135 Wn.2d. at 434-35. The findings are necessary for an appellate courtto review the award. Bentzen v. Demmons, 68 Wn. App. 339, 350, 842 P.2d 1015 (1993). Where a trial court fails to create the appropriate record, remand for entry of proper findings and conclusions is the appropriate remedy. Mahler, 135 Wn.2d at 435. The Walches asserted three easement claims: an easement by necessity under RCW 8.24.010, a prescriptive easement, and an implied easement by prior use. The latter two common law claims were dismissed by agreement at summaryjudgment. After prevailing attrial, the respondents presented requests for attorney fees that segregated the fees related to the statutory action from those related to the common law claims, but argued on various theories that they were also entitled to attorney fees for defending the
common law claims. The Walches contend on appeal that the court erred by finding that the claims
were too interrelated to segregate and that the fee award was excessive. We agree that· the claims could be segregated and reverse the trial court's finding that it was not appropriate to segregate. However, we see no abuse ofdiscretion in assessing the amount ofattorney fees for the defense ofthe statutory claim. 10No. 30129-0-III Walchv. Clark Initially, we agree with the Wa1ches that RCW 8.24.030 does not apply to the
common law claims. The statute applies to any actions "broughtunderthe provisions of this chapter." RCW8.24.030. Itdoes not thereby extend to all related claims. However, the trial court still has authority to grant the entirety ofa fee request when it is impractical to segregate covered and noncovered claims. 

### Bume, 124 Wn.2d at 673. While that is how the trial court treated the requests here, it was not impractical to segregate the claims. The respondents did in fact segregate their requests. Indeed, the trial court also awarded fees to the respondents based on each category ofclaims. There
were three distinct legal theories subjectto different discovery and legal research efforts. Itwas not impractical to segregate. The trial court erred in concluding otherwise. The Wa1ches also challenge the reasonableness ofthe total fee award. We see no abuse ofdiscretion. The Walches imposed significant costs ontheir neighbors who properly proved their defense costs, including the claims thatwere not subjectto reimbursement underthe statute. The Wa1ches do not challenge the hourly rate charged by respective counsel. The court reviewed the time slips and properly applied the lodestar formula to calculate the fee award. The fees awarded each respondent were reasonable. The Walches sought an easement across commercial property owned by two parties and cannot now claim itwas unreasonable for bothrespondents to fully contest the action at great expense to all.



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# INo. 30129-0-111 Walch v. Clark
The attorney fee awards for the defense ofthe statutory claim are affirmed; the awards under the statute for the defense ofthe common law claims are reversed. Common Law Theories. Respondents also sought CR 11 sanctions in the trial court on the common law claims, arguingthatthey were broughtwithoutproper investigation. The trial court did not address this argumemin light ofits decision to grant fees underthe statute. On appeal, the respondents reprise this argument as an alternative basis for affirming the fee award. The Walches contend thatthe argument cannotbe addressed due to the failure oftherespondents to cross appeal. Only a party who has been aggrieved by a trial court action can appeal. RAP 3.1. The respondents were not aggrieved; the trial court awarded attorney fees on the common law claims. They had no basis for seeking affirmative relief. Instead, they properly raised the issue as an alternative basis for affirming the trial court. Wolstein v. Yorkshire Ins. Co., 97 Wn. App. 201, 206-07, 985 P.2d 400 (1999). This court is not in a position to decide the CR 11 issue in the absence offinding by the trial court. Since we have reversedthe fee award under the statute for the common law claims, weremandthis issue to the trial court for consideration ofthe respondents' CR 11 argumentrelatedto those claims. AttorneyFees onAppeal. Finally, all parties seek attorney fees on appeal. The Walches seek fees for respondingto the CR 11 argument. However, as that argument

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was properly brought to this court, the Walches have not prevailed on that issue and there is no basis for awarding fees to them. Respondents seek their attorney fees based on eitherRCW 8.24.030 orfor responding to a frivolous appeal. This appeal was not frivolous. The Walches presented
a debatable issue concerning the necessity oftheirprivate condemnation action. The statute does provide a basis for awarding fees to the respondents. However, at this point they have not substantially prevailed. While they have won on the merits ofthe private condemnation action, their attorney fee award has beenreduced, at least temporarily. If, on remand, respondents prevail on their CR 11 argument and regaintheir fees for the common law claims, the trial court also should award respondents theirreasonable attorney fees for defending the appeal in this court. Ifthey do notprevail on the CR 11 claim, then no party will receive any fees for the appeal. Affirmed in part, reversed in part, and remanded.

13No. 30129-0-111 Walch v. Clark
A majority ofthepanel has determined this opinion will not beprinted in the WashingtonAppellate Reports, but it will be filed for publicrecord pursuantto RCW 2.06.040.
Korsmo, C.J. WE CONCUR:
Brown, 1. Kulik, J.



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