Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JACK W. EVARONE,                            )       NO. 66176-1-I
                                            )
                      Appellant,            )       DIVISION ONE
                                            )
                      v.                    )
                                            )
LEASE CRUTCHER LEWIS, a                     )
Washington Corporation; SENECA              )
REAL ESTATE GROUP, a Washington )                   UNPUBLISHED OPINION
State Corporation; HORIZON HOUSE,           )
a Washington State Corporation;             )       FILED: March 12, 2012  
NUPRECON LP, a Washington State             )
Corporation; FRUHLING, INC., a              )
Washington State Corporation;               )
FRUHLING SAND AND TOPSOIL, INC.,) 
                                            )
                      Respondents,          )
                                            )

       Lau, J.  --  Apartment owner Jack Evarone sued the project owner, development 

manager, and contractors for property damage to the Terri Ann Apartments arising from 

their construction activities on neighboring property.  Because Evarone presents 

insufficient evidence to support the essential elements of his negligence, trespass, 

nuisance, and loss of lateral support claims, we affirm summary judgment dismissal.   

66176-1-I/2

                                            FACTS

       We view the facts in the light most favorable to Evarone as the nonmoving party.  
Evarone owns the Terri Ann Apartments1 (the "Terri Ann") in Seattle.  The Terri Ann 

was built in the 1960s on a steep hillside.  According to Evarone's structural engineer

Dan Fenton, by late 2005 the Terri Ann was in "average adequate repair" for its age 

and showed significant preconstruction cracking "not unusual for a 1960s building."           

       Horizon House is a residential retirement community in Seattle's First Hill 

neighborhood.  The Horizon House property is adjacent to the Terri Ann's southern 

property line.  In 2005, Horizon House planned to expand its facility by building a new 

tower on land just north of the then-existing Horizon House facility and south of the 
Terri Ann property.2 Horizon House retained Seneca Real Estate Group ("Seneca") as 

the project's development manager and Lease Crutcher Lewis ("LCL") as general 

contractor.  LCL contracted with Nuprecon Inc. to perform demolition work and Fruhling 

Inc. to perform excavation and soil removal work.        

       Construction on the project began on August 29, 2005, and was completed in

September 2007.  Nuprecon commenced demolition work on August 29, 2005, and 

finished on October 12, 2005.  Fruhling commenced mass excavation on October 7, 

2005, and finished all mass excavation around March 20, 2006.  It completed minor 

       1 We use Evarone's spelling for the Terri Ann Apartments in this opinion.

       2 The Le Roi Apartments and a parking lot were situated on the land slated for 
the new tower.  
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footing excavation by June 14, 2006.  The project site was excavated to a depth of 30

to 40 feet and the edge of the excavation was set back about 15 feet south of the Terri 

Ann property line.  

       Seneca retained geotechnical engineering firm Hart Crowser Inc. (HCI) to 

monitor soil and structural movement during construction at Horizon House.  HCI 

drafted a "Site and Exploration Plan" and prepared a "Geotechnical Engineering Design 

Study" of the construction site.  The study recommended that construction contractors 

take various steps to avoid soil erosion and earth movement.  HCI found that the 

project's contractors followed recommendations to avoid erosion and soil movement 

and the project site "appeared free of sediment on final inspection."  Seneca also 

retained surveying and civil engineering firm Bush, Roed, & Hitchings Inc. (BRH) to 

conduct surveys regarding the Horizon House project.  BRH performed "periodic 

monitoring of the horizontal location and elevation of various points in and around the 

project site, including the north retention wall and along Terry Avenue."  BRH's studies 

showed negligible soil movement occurred between September 14, 2005 

(preexcavation baseline) and May 12, 2006 (postexcavation).  

       In September 2005, a tree fell from Horizon House's property onto the Terri Ann.  

LCL offered to repair the damage, but Evarone declined.  In early October 2005, 

Evarone notified LCL about his concerns regarding vibrations from construction 

activities that he alleged were shaking the Terri Ann.  Evarone also expressed concern 

about dust drifting from the project site onto his property and concrete cracking in the 

Terri Ann building and driveway.  

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       In October 2005, Evarone hired structural engineer Dan Fenton to monitor 

damage to the Terri Ann.  Fenton first visited the Terri Ann property on October 28, 

2005, and periodically monitored it through April 2010.  During his site visits, he took 

photographs of cracks in the concrete on the Terri Ann property, including the 

apartment building structure and the driveway.  Fenton testified by deposition that he 

took 17 pictures of alleged cracking and damage at the Terri Ann property on January 

24, 2006, but the cracks were small and he lacked a camera capable of photographing 

new cracking.  Fenton also testified that many cracks existed on his first site visit and 

"were likely there prior to the start of construction." Fenton installed no vibration or 

crack meters when he visited the site in fall 2005.  Other than visual site observations, 

taking photographs, and setting up a crack monitor in August 2009, he conducted no 

specific tests to measure earth movement or record other property conditions.  He 

obtained no measurements of earth movement or drainage changes caused by the 

Horizon House project.  When questioned about damage, Fenton testified that what he 

saw in 2008 was basically the same as what he saw in 2005, but it had "aged a little 

bit."  

       Fenton provided reports to Evarone evaluating the damage and making

recommendations.  In his March 20, 2006 report, Fenton wrote:

       During the demolition of the existing structures and the excavation of the 
       construction site, the Terry Ann Apartments incurred miscellaneous damage.  
       The observed damage appears to be recent.  The concrete cracks are sharp and 
       the concrete color at the cracks is clean.  During our site visits we could feel 
       vibration from equipment movement at the construction site next door.  The 
       damage is consistent with what one would expect from vibration  --  cracking of 
       brittle materials and settlement of the subgrade below a concrete slab-on-grade.

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Fenton also noted "fresh cracks" in the stucco that was part of the structured slab in the 

parking area and "cracks and signs of movement in the street level sidewalk outside 

the main entry." Fenton returned to the Terri Ann property several times in 2009 and 

2010 to check the crack monitor.  Each time he found no movement, except for an 

unexplained 0.5-millimeter movement on October 12, 2009.  

       Concerned about misaligned elevator shafts due to soil movement, Evarone 

hired Vertical Transportation Services ("VTS") to monitor the Terri Ann's elevators.  

VTS inspected the elevators three times.  During its first visit on October 26, 2005, VTS 

observed cracks around the elevators and in the machine room wall.  During its 

November 22, 2005 inspection, VTS noted a new one-half-inch crack on the fourth floor 

of the elevator and a three-inch crack spread in the machine room wall.  During its 

January 24, 2006 inspection, VTS noted a one-and-one-half-inch crack spread on the 

seventh floor of the elevator and "a little" additional spread in the machine room wall 

crack.  VTS proffered no opinion on what caused these cracks.

       On October 23, 2008, Evarone sued LCL, Seneca, Horizon House, Nuprecon,

and several John Doe defendants for negligent destruction of property, trespass to 
land, nuisance, loss of lateral support, and diminished value3 stemming from the 

Horizon House construction project.  Evarone filed a first amended complaint on April 

9, 2009, naming the John Doe defendants as Nuprecon LP and Nuprecon GP 

       3 On appeal, "Evarone recognizes that his claim for diminished value is more 
properly framed as a measure of damages than as a freestanding claim.  Accordingly, 
Evarone continues to seek recovery of damages for the diminished value of his 
property as part of his remaining claims." Appellant's Br. at 8 n.2.

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(collectively "Nuprecon"), Fruhling, and Fruhling Sand & Topsoil (collectively "Fruhling").4  

       In August 2009 -- nearly two years after construction ended -- Evarone hired 

Todd Wentworth, a geotechnical engineer at AMEC Earth & Environmental Inc., to 

assess the damage to the Terri Ann.  Wentworth observed large cracks in an area of 

slab-on-grade concrete at the base of a driveway ramp.  As to the cause, he explained, 

"It is difficult to tell if these are new cracks, but it does appear that the cracks have 

opened wider recently." Wentworth noted in his report, "[I]t seems likely that 

construction vibrations could have caused settlement of the fill and cracking of the 

concrete slab or widening of pre-existing cracks in the concrete." Wentworth also 

found small cracks in the Terri Ann's parking area and concluded the cracks had 

opened recently.  He attributed the likely cause of cracking to vibrations from the 

construction.  Wentworth also testified that some cracks in the concrete predated the 

construction project.  He could not say whether any increased cracking was due to 

construction activities.  Beyond blaming construction or vibrations generally, Wentworth 

could not isolate which portion of the construction might have caused fill settlement and 
concrete cracking.  As to the rockery,5 Wentworth found "accumulation of sand and 

some small gravel that appears to have fallen or washed out from behind the boulders"

and noted that "surface water runoff during construction could have caused this 

washout." Wentworth testified that any additional surface flow onto the Terri Ann 

       4 Except where indicated, we refer to LCL, Horizon House, Seneca, Nuprecon, 
and Fruhling collectively as "the defendants."
       5 By "rockery" the parties refer to a slope on the Terri Ann property near the 
southern boundary line that contained landscaping boulders.  
                                            -6- 

66176-1-I/7

property due to the construction project was "negligible."  

       In July 2010, the defendants moved for summary judgment, arguing that (1) the 

statute of limitations barred Evarone's claims and (2) Evarone presented no evidence 

that the defendants caused any of the alleged damage.    

       Evarone's opposition brief agued material issues of fact defeat summary 

judgment based on joint and several liability and the res ipsa loquitur doctrine.  He also 

argued under Oja that his claims are timely filed.  Vern J. Oja & Assocs. v. Washington 

Park Towers, Inc., 89 Wn.2d 72, 569 P.2d 1141 (1977).  Evarone also submitted 

opposition declarations from expert witnesses Fenton and Wentworth.  

       Fruhling moved to strike Evarone's res ipsa loquitur and joint and several liability

claims for pleading deficiencies.  LCL, Seneca, and Horizon House joined in Fruhling's 

motion limited to the res ipsa loquitur claim.  LCL, Seneca, Fruhling, and Horizon 

House also moved to strike portions of Fenton and Wentworth's declarations, arguing 
Marshall6 violations because the excerpts contradict their prior deposition testimony.  

Those defendants also argued the witnesses lacked necessary qualifications to

express certain opinions.    

       The trial court (1) granted Fruhling's motion to strike Evarone's res ipsa loquitur 

and joint and several liability claims for failure to plead, (2) granted LCL, Seneca, and 

       6 Marshall v. AC & S Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989) (holding 
that "'[w]hen a party has given clear answers to unambiguous [deposition] questions 
which negate the existence of any genuine issue of material fact, that party cannot 
thereafter create such an issue with an affidavit that merely contradicts, without 
explanation, previously given clear testimony.'") (quoting Van T. Junkins & Assocs., Inc. 
v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984)).

                                            -7- 

66176-1-I/8

Horizon House's motion to strike portions of Fenton and Wentworth's declarations under the 

Marshall rule, and (3) granted all defendants' motions for summary judgment and 

dismissed the case, ruling no material issues of fact remained for trial.  The trial court 
denied Evarone's motion for reconsideration.  Evarone appeals.7

                                          ANALYSIS

       Standard of Review

       We review a summary judgment order de novo, performing the same inquiry as 

the trial court and considering facts and reasonable inferences in the light most 

favorable to the nonmoving party.  Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 

P.3d 1068 (2002).  Summary judgment is proper if no genuine issue of material fact 

remains and the moving party is entitled to judgment as a matter of law.  CR 56(c).  

The nonmoving party may not rely on mere allegations, denials, opinions, or conclusory 

statements but must set forth specific admissible facts indicating a genuine issue for 

trial.  CR 56(e); Int'l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 
744, 87 P.3d 774 (2004).8  

       7 Evarone does not appeal the trial court's entry of summary judgment in favor of 
Fruhling Sand & Topsoil Inc.  Appellant's Br. at 8 n.1.

       8 Fruhling argues -- and Evarone does not dispute -- that we should not consider 
clerk's papers after clerk's papers 969 because they were not before the trial court on 
summary judgment.  In reviewing a summary judgment order entered pursuant to CR 
56, we "can review only those matters that have been presented to the trial court for its 
consideration before entry of the summary judgment."  Am. Universal Ins. Co. v. 
Ranson, 59 Wn.2d 811, 815, 370 P.2d 867 (1962).  The clerk's papers after 969 were 
not before the trial court on summary judgment, and we will not consider them in 
reviewing the summary judgment order. 

                                            -8- 

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       We also review de novo9 all trial court rulings made in conjunction with a summary 

judgment motion, including rulings excluding portions of declarations.  Cornish College 
of the Arts v. 1000 Virginia Ltd. P'ship, 158 Wn. App. 203, 215, 242 P.3d 1 (2010).10

       Insufficiency of the Evidence11

              A.  Negligent Destruction of Property

       Evarone contends the defendants breached their duty of reasonable care during 

construction, leading to "cracks, soil erosion, deterioration of rockery walls, and liquid 

splatter" on his property.  The defendants argue that Evarone presented insufficient 

evidence to establish a prima facie negligence claim.  

        To defeat summary judgment in a negligence action, the plaintiff must show that 

a genuine issue of material fact exists with respect to each element of a negligence 

claim:  duty, breach of duty, causation, and injury/damages.  Kennedy v. Sea-Land 

Serv., Inc., 62 Wn. App. 839, 856, 816 P.2d 75 (1991). Existence of a duty is a 

       9 The defendants erroneously assert that an abuse of discretion standard 
applies even for evidentiary rulings in the course of summary judgment proceedings.  
But they cite pre-1998 law or cases citing pre-1998 law.  Folsom v. Burger King, 135 
Wn.2d 658, 663, 958 P.2d 301 (1998), makes clear that the de novo standard applies.

       10 We also note that "materials submitted to the trial court in connection with a 
motion for summary judgment cannot actually be stricken from consideration as is true 
of evidence that is removed from consideration by a jury; they remain in the record to 
be considered on appeal.  Thus, it is misleading to denominate as a 'motion to strike'
what is actually an objection to the admissibility of evidence that could have been 
preserved in a reply brief rather than by a separate motion."  Cameron v. Murray, 151 
Wn. App. 646, 658, 214 P.3d 150 (2009).

       11 Even assuming without deciding (1) the claims are timely filed and (2) the 
admissibility of Fenton and Wentworth's previously stricken declaration testimony, 
Evarone presents insufficient evidence to support his claims as discussed below.
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question of law.  Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).  

Breach and proximate cause are generally fact questions, but "if reasonable minds 

could not differ, these factual questions may be determined as a matter of law."  

Hertog, 138 Wn.2d at 275.

       We conclude Evarone presents insufficient evidence to establish a prima facie 
negligence case.12 First, Evarone presents no evidence establishing the applicable

standard of care or breach of any standard of care.  The record shows that Fenton and 

Wentworth undisputedly testified they would not proffer testimony defining the standard 
of care or explain how the defendants breached any duty.13 Wentworth's declaration

testimony speculated that "if [vibration] monitoring had occurred, the damages caused 

to Mr. Evarone's property very well might have been avoided" and stated "it seems 

reasonable in this case that . . . vibration monitors should have been installed."  Fenton 

made a similar statement in his declaration.  This testimony fails to establish the

standard of care applicable here.  See Seven Gables Corp. v. MGM/UA Entm't Co., 106 

       12 Evarone's brief does not address the insufficient evidence issue.  Instead, he 
responds by arguing that the elements of duty and breach are met by the res ipsa 
loquitur doctrine.  

       13 See Clerk's Papers (CP) 174 (Fenton's testimony that he would not be 
"addressing means and methods . . . of how the Horizon House was constructed"); CP 
406-07 (Fenton's testimony that "I don't judge the standard of care for the general 
contractor . . . or the subcontractors"); CP 438 (Wentworth's testimony that he 
understood Evarone retained him to assess property damage, not act as an expert at 
trial); CP 604 (statement in Fenton's declaration that when he was hired, "Mr. Evarone 
did not retain [him] at that time  to be an expert witness in contemplation of litigation"); 
CP 811 (Fenton's testimony that he was not asked to look at how the Horizon House 
construction was occurring next door, did not have direct knowledge of what went on 
there, and "was not reviewing [the contractors'] means and methods").

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Wn.2d 1, 13, 721 P.2d 1 (1986) (speculative assertions are insufficient to defeat summary 

judgment).  The record indicates the defendants installed vibration monitors.  HCI's 

unchallenged report concluded that excavation and construction "was accomplished in 

accordance with the recommendations of [its] geotechnical report, [its] input during 

construction, and in accordance with the [Department of Planning and Development]-

approved project plans and specifications." In HCI's opinion, "excavation was 

performed in an orderly, thoughtful manner" and the defendants took effective 

measures to prevent migration of sediment off the Horizon House site.  After its final 

site visit on June 25, 2007, HCI noted that permanent erosion and sediment control 

measures were in place and concluded that the Horizon House site "appeared free of 

sediment."  Given the record's absence of evidence demonstrating breach of any duty, 

Evarone's negligence claim fails.

       Evarone also fails to create a material issue of fact regarding causation.  

Proximate cause consists of two elements -- cause in fact and legal causation.  City of 

Seattle v. Blume, 134 Wn.2d 243, 251, 947 P.2d 223 (1997).  Legal causation involves 

the question of whether liability should attach as a matter of law.  Blume, 134 Wn.2d at 

252.  Cause in fact is established if the plaintiff's injury would not have occurred but for 

the defendant's action.  Hertog, 138 Wn.2d at 282-83.  The question of cause in fact is 

normally left to the jury, but "if reasonable minds could not differ, [this] factual question[] 

may be determined as a matter of law."  Hertog, 138 Wn.2d at 275.

       Our review of the record shows insufficient evidence from which a reasonable 

jury could conclude that the defendants' activities proximately caused damage to the 

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Terri Ann.  For example, at Wentworth's deposition, the following exchange occurred:

              Q. . . . . So the question, the issue here is you need to have vibrations 
       significant enough to cause damage, correct?
              A. Correct.
              Q. I mean, not all vibration causes damage, correct?
              A. Yes.
              Q. Right.  Okay.  So then how do you know, or what's the basis upon 
       which you are concluding that the vibrations in this construction project, no 
       matter what aspect of it  --  the demolition, the building, the soldier piles, whatever 
        --  how do you know that those vibrations were significant enough to cause 
       damage that Mr. Evarone is claiming?
              A. Because I observed damage.  I observed the damage.  I think it's 
       based on soil settling; something had to cause that.  And from my experience, 
       there are often vibrations involved with construction and demolition.
              Q. And just so I'm clear, that is the sole basis of your opinion, correct?
              A. That is it.

Wentworth also testified about the limited scope of his work at the Terri Ann 

site -- surface observations and document review.  In 2009, long after construction was 

completed, he inspected the Terri Ann property.  He performed no subsurface 

exploration, laboratory tests, or engineering analysis.  He testified that his observations 

indicated construction vibrations could have caused soil settlement, not that the 

vibrations did cause settlement.  

       Similarly, Fenton took no measurements of vibrations or earth movement and 

performed no drainage studies.  At his deposition, he testified "[t]here were lots of 

cracks when [he] first arrived at the site" and that he did not know what the cracks 

looked like before the construction began.  He testified, "Some vibration does not 

cause damage necessarily, that is true." When asked at his deposition how he 

determined that drainage from the Horizon House property caused washout and a 

toppled retaining wall on the Terri Ann property, Fenton responded, "I did not do any 

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66176-1-I/13

measurements and it visually looked like that could happen."  Fenton speculated in a 

project report:  "During our site visits we could feel vibration from equipment movement 

at the construction site next door.  The damage is consistent with what one would 

expect from vibration  --  cracking of brittle materials and settlement of the subgrade 

below a concrete slab-on-grade."  Fenton's declaration testimony explained that certain 

damages "appeared" to be caused by water drainage from Horizon House.  He also 

made conclusory statements that damage was "consistent with what [he] would expect 

from vibration associated with construction at the adjacent Horizon House property"

and "construction activities at the adjacent Horizon House property caused damage to 

Mr. Evarone's property." But on summary judgment, the nonmoving party may not rely 

on speculation, mere allegations, denials, or conclusory statements to establish a 

genuine issue of material fact.  Int'l Ultimate, 122 Wn. App. at 744.  A party's own self-

serving opinions and conclusions are insufficient to defeat a motion for summary 

judgment.  Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-61, 753 P.2d 

517 (1988).  Even construing their testimony most favorably to Evarone, Fenton and 

Wentworth speculate that the construction could have damaged Evarone's property.  

We conclude Evarone presented insufficient evidence to raise material fact issues

regarding causation.    

       Evarone responds that duty and breach are satisfied under the doctrine of res 
ipsa loquitur.14  Whether res ipsa loquitur applies in a given context is a question of law 

       14 Given our resolution of the res ipsa loquitur claim, we need not address 
Evarone's assertion that the trial court improperly struck his res ipsa loquitur argument.         

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reviewed de novo.  Curtis v. Lein, 169 Wn.2d 884, 889, 239 P.3d 1078 (2010).  The 

doctrine provides a permissive inference of negligence to be drawn by the fact finder if 

the plaintiff establishes three elements:  (1) the occurrence producing the injury was of 

a kind that ordinarily does not occur in the absence of negligence, (2) the injury was 

caused by an agency or instrumentality within the exclusive control of the defendant, 

and (3) the injury-causing occurrence was not due to any contribution of the injured 

party.  Curtis, 169 Wn.2d at 891.  The first element is satisfied if one of three conditions 

is present:

       "(1) When the act causing the injury is so palpably negligent that is may be 
       inferred as a matter of law, i.e., leaving foreign objects, sponges, scissors, etc., 
       in the body, or amputation of a wrong member; (2) when the general experience 
       and observation of mankind teaches that the result would not be expected 
       without negligence; and (3) when proof by experts in an esoteric field creates an 
       inference that negligence caused the injuries."

Curtis, 169 Wn.2d at 891 (quoting Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 

(2003)).  If any of the three elements of res ipsa loquitur is missing, a presumption of 

negligence is unwarranted.  Res ipsa loquitur is "'ordinarily sparingly applied, in 

peculiar and exceptional cases, and only where the facts and the demands of justice 

make its application essential.'"  Curtis, 169 Wn.2d at 889 (quoting Tinder v. 

Nordstrom, Inc., 84 Wn. App. 787, 792, 929 P.2d 1209 (1997).  

       As to the first element, Evarone relies only on the second condition.  To 

establish this condition, he contends that general experience shows "fresh cracking 

and settlement on property adjacent to a building site would not normally occur in the 

absence of someone's negligence." Appellant's Br. at 29-30.  The record shows 

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evidence of cracks that grew by millimeters.  General experience (and the record) 

shows that concrete often develops cracks in the absence of negligence.  Res ipsa 

loquitur does not apply where, as in this case, there is evidence that the accident 

"could occur without negligence."  Adams v. W. Host, Inc., 55 Wn. App. 601, 606, 779 

P.2d 281 (1989) (emphasis added). Long before construction began, the Terri Ann's 

concrete slab developed many large cracks and the retaining wall on the property's 

southwest corner had fractured and toppled.  Evarone's experts Fenton and Wentworth 

confirmed that concrete cracking is a normal process.  Fenton testified, "[T]he physical 

properties of concrete are such that once concrete has been cracked, the cracks will 

continue to widen until the concrete is repaired or replaced." Wentworth also testified, 

"[C]racking is common in concrete, especially in large slabs." And neither expert 

offered opinion evidence pointing to which construction activities by numerous 

contractors on the job caused the alleged damage.  If the evidence shows that the 

event could have easily occurred as a result of more than one cause, res ipsa loquitur 

is not available as a means of proving negligence.  McKinney v. Frodsham, 57 Wn.2d 

126, 135, 356 P.2d 100 (1960) (proof that a third person's negligence caused the injury 

will defeat a res ipsa loquitur claim). 

       We conclude as a matter of law that the res ipsa loquitur doctrine is 

       15 Evarone cites no case and we found none in which any court applied the res 
ipsa loquitur doctrine under circumstances similar to the ones here.  See 16 WAPRAC 
§ 1.54 at 77 (comprehensive list of illustrative cases applying the res ipsa loquitur 
doctrine).  "'Where no authorities are cited in support of a proposition, the court is not 
required to search out authorities, but may assume that counsel, after diligent search, 
has found none.'"  State v. Logan, 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000) 
(quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 
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inapplicable.15 Because Evarone fails to establish a prima facie case of negligence, 

summary judgment on this claim was proper.16

              B.  Trespass to Land

       Evarone claims the defendants committed intentional trespass premised on 

(1) construction related dust, soil, sealant overspray, and water and (2) demolition work 

caused vibrations to travel into nearby fill soils resulting in cracks.

       Trespass is an "'interfere[nce] with the right to exclusive possession of property

. . . .'"  Bradley v. Am. Smelting & Refining Co., 104 Wn.2d 677, 690, 709 P.2d 782 

(1985) (quoting Borland v. Sanders Lead Co., 369 So. 2d 523, 529 (Ala. 1979)).  To 

prove intentional trespass under the Bradley test, Evarone must show:  (1) an invasion 
of property affecting an interest in exclusive possession, (2) an intentional17 act,

(1962)).

       16 Evarone also claims the trial court erred in striking his joint and several liability 
argument. He claims defendants have the burden of "assert[ing] the fault of another as 
a defense and then show[ing] the existence of evidence to support that defense."  
Appellant's Br. at 33.  But in Washington, the burden of apportionment shifts to the 
defendants only after a plaintiff has established fault, proximate cause, and damage.  
See Phennah v. Whalen, 28 Wn. App. 19, 29, 621 P.2d 1304 (1980); Cox v. Spangler,
141 Wn.2d 431, 5 P.3d 1265 (2000). Joint and several liability applies only if judgment 
is entered against more than one defendant.  See RCW 4.22.070(1)(b); Gass v. 
MacPherson's Inc. Realtors, 79 Wn. App. 65, 69, 899 P.2d 1325 (1995).  Judgment 
was not entered against any defendant here; the error, if any, was harmless.  See
Anfinson v. FedEx Ground Package Sys., Inc., 159 Wn. App. 35, 44, 244 P.3d 32 
(2010).

       17 In this context, "intent" means desire or knowledge to a substantial certainty 
that a particular consequence will result from one's act.  Bradley, 104 Wn.2d at 682-83.  
The defendant need not intend the trespass; he need only desire or know to a 
substantial certainty that the trespass will result from his intentional actions.  Brutsche 
v. City of Kent, 164 Wn.2d 664, 674 n.7, 193 P.3d 110 (2008).

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66176-1-I/17

(3) reasonable foreseeability that the act would disturb the plaintiff's possessory 

interest, and (4) actual and substantial damages.  Bradley, 104 Wn.2d at 692-93.  

When considering whether damages rise to the level of "substantial," examples of 

nonactionable damages include minor water intrusion, occasional debris, and areas of 

yellowed and dead grass.  Grundy v. Brack Family Trust, 151 Wn. App. 557, 568, 213 

P.3d 619 (2009).   

       Evarone fails to show the defendants' construction activities substantially 
damaged his property. The record shows transitory dust caused no lasting damage.18  

Colorless waterproof sealant overspray drifted onto the Terri Ann's awnings but did not 

reduce the awnings' useful life.  Wentworth testified that the water flow conditions and 

locations were largely the same before and after construction.  As for the concrete 

cracking, Fenton testified that the cracks grew only by millimeters and Wentworth did 

not know how much or when the cracks grew.  Concerning soil movement, Wentworth 

       18 On October 6, 2005, Evarone wrote a letter to LCL requesting compensation 
of $450 he claimed to have spent cleaning the dust from his building on four occasions.  
LCL responded, 
       It appears that three of the four cleaning charges that you noted were prior to 
       our mobilization date of August 29th [2005] and although I'm not disputing that 
       the work was done, we don't believe we are responsible for the payment of those 
       bills as you have requested.  The fourth charge, which apparently occurred on 
       September 15th appears to be reasonable and will be paid.
The record also indicates Evarone made a $12,502.60 payment demand to LCL on 
May 4, 2006.  The demand encompassed cleaning during demolition, elevator 
inspections and surveys, engineering and consulting services, and construction 
services.  But the record does not contain the bills giving rise to the payment demand 
and also fails to indicate whether LCL responded or paid the claimed damages.  
Evarone also fails to specifically argue the $12,502.60 as damages on appeal.  We will 
not consider an inadequately briefed argument.  First Am. Title Ins. Co. v. Liberty 
Capital Starpoint Equity Fund, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011).

                                            -17- 

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noted that rebar or stakes driven into the ground were out of kilter.  He could not attribute 

that condition to soil movement.  He did not identify any soils that traveled from Horizon 

House onto the Terri Ann property.  He also did not know whether construction 

damaged the fractured retaining wall on the Terri Ann property's southwest corner.  

Because Evarone presents no evidence to establish substantial damage caused by the 

defendants, the trial court properly dismissed his trespass claim on summary 
judgment.19  

       19 Evarone also fails to establish the intent element.  Evarone argued below that 
the defendants acted with intent because they knew to a substantial certainty that their 
activity would damage his property.  But he cites no evidence showing that any of the
defendants knew the construction work would damage the Terri Ann.  In Pepper v. J.J. 
Welcome Construction Co., 73 Wn. App. 523, 871 P.2d 601 (1994), overruled on other 
grounds by Philips v. King County, 87 Wn. App. 468, 943 P.2d 306 (1997), we held that 
a trial court properly dismissed on summary judgment a plaintiff's trespass claim for 
insufficient evidence when the plaintiff presented
       no evidence that [the defendant construction company] intended or was 
       substantially certain that mud, gravel, and silt would be deposited on their 
       properties.  In fact there was evidence to the contrary. The only intent shown, 
       on [the defendant's] part, was that of developing the Welcome Wood property 
       and accomplishing activities to that end.
 Pepper, 73 Wn. App. at 547.  In contrast, in Bradley, the defendant smelting company 
stipulated that it had been aware for nearly 80 years that its smelting process emitted 
microscopic, airborne particles of heavy metals that were blown over and deposited on 
the plaintiffs' land.  Bradley, 104 Wn.2d at 681.  Our Supreme Court held that under the 
circumstances, the defendant had the requisite intent to commit intentional trespass as 
a matter of law and that its conduct constituted a trespass.  Bradley, 104 Wn.2d at 684.  
Here, Evarone cannot prove intent where no evidence shows the defendants desired or 
knew to a substantial certainty that the construction work would cause invasion or 
damage to Evarone's property.  Like in Pepper, the only intent indicated by the 
evidence here on the part of the defendants was that of excavating and constructing on 
the Horizon House property and accomplishing activities to that end.  

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66176-1-I/19

              C.  Nuisance

       Evarone contends the defendants are liable for private nuisance.  He claims: 

(1) vibrations disturbed residents and caused them to move; (2) vibrations caused soil 

movement, concrete cracks, and excess water runoff; (3) dust and overspray 

accumulated on the property; and (4) construction activity caused noise.  

       Washington defines "nuisance:"

       The obstruction of any highway or the closing of the channel of any stream used 
       for boating or rafting logs, lumber or timber, or 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, is a nuisance and the subject of an action for damages and other and 
       further relief.

RCW 7.48.010.  In other words, "[a] nuisance is an unreasonable interference with 

another's use and enjoyment of property . . . ."  Kitsap County v. Allstate Ins. Co., 136 

Wn.2d 567, 592, 964 P.2d 1173 (1998).  While the plaintiff must show that the 

interference is "unlawful," that term has been used synonymously with the term 

"unreasonable."  Collinson v. John L. Scott, Inc., 55 Wn. App. 481, 488, 778 P.2d 534 

(1989) (quoting Karasek v. Peier, 22 Wash. 419, 427, 61 P. 33 (1900)).

       To establish a nuisance claim, Evarone must show that the defendants 

unlawfully did some act or failed to perform a duty that unreasonably interfered with his 
use and enjoyment of his property.20  Kitsap County, 136 Wn.2d at 592. He fails to 

present evidence that raises a material fact issue on whether the construction activity 

was unreasonable.  See Collinson, 55 Wn. App. at 487-88 (trial court properly granted 

       20 The record shows Evarone presented no duty evidence.

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66176-1-I/20

summary judgment to defendant where plaintiff alleging nuisance claim could not show 

construction of adjacent building was unreasonable).  HCI's engineering design study of 

the construction site addressed various aspects of the project, including shoring 

selection and design, seismic considerations, and environmentally critical areas.  This 

study recommended that the construction contractors take various steps to avoid 

erosion and soil movement.  Throughout and at the project's completion, HCI examined 

the construction site for conformance with the recommendations in the study.  HCI 

concluded the contractors generally followed those study recommendations.  During 

construction, HCI also monitored the contractors' erosion control measures and 

determined the contractors' methods conformed with the standard of practice for this 

type of work.

       As to the excavation work, HCI reported to the City of Seattle Department of 

Planning and Development (DPD), "[HCI] observed and monitored the excavation while 

on site observing the shoring installation.  In our opinion, the excavation was performed 

in an orderly, thoughtful manner." HCI also reported to DPD that the Horizon House 

project "was accomplished in accordance with the recommendations of our

geotechnical report, our input during construction, and in accordance with the DPD-

approved project plans and specifications."  Evarone submitted no evidence directly 

challenging this evidence.

       Evarone also fails to show that any of the claimed nuisances described above 

interfered with his use and enjoyment of the property.  He first claims that the 

construction vibrations disturbed residents and prompted them to move.  He cites no 

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66176-1-I/21

evidence of lost rent or complaints from residents.  In his deposition, he discussed only 

his own perception of vibrations and made no claim that the vibrations unreasonably 

interfered with his own use of the property.  He next claims that construction caused 

soil movement, cracking, and excess water runoff.  He relies on Fenton and 
Wentworth's declarations, which do not establish unreasonable interference.21  

Evarone also claims the defendants' activity created noise.  He cites to former LCL 

employee Larry Bjork's deposition for this claim.  Bjork testified, "A project like this 

would create noise, yes."  This bare statement does not establish that the construction 

noise constituted a nuisance.  Nor does he provide evidence of tenant noise 

complaints.  Citing Bjork's deposition, Evarone also claims that dust traveled onto his 

property.  Bjork testified, "I'm sure there was dust."  This brief testimony fails to 

establish that the dust constituted a nuisance.  Finally, Evarone argues that overspray 

on the Terri Ann's awnings constitutes a nuisance.  He testified that the overspray was 

colorless and had no effect on the useful life of the awnings.  Because the record 

shows no evidence to support his nuisance claim, we conclude the trial court properly 
granted the defendants' summary judgment motion.22

       21 As discussed above, the record contains insufficient evidence that the 
defendants' construction activities caused soil movement and cracking.

       22 To the extent Evarone argues that the tree that fell from Horizon House's 
property onto the Terri Ann constitutes negligence, trespass, or nuisance, we disagree.  
The tree fell during LCL's tree removal operations and damaged the Terri Ann's 
exterior.  LCL offered to fix the damage and was coordinating repairs with the Terri 
Ann's apartment manager, but Evarone requested LCL stop the repairs.  He claimed in 
his deposition, "Because of the continuing nature of the project I didn't want to do 
[repairs] piecemeal." Evarone presents no evidence that the fallen tree was a result of 
LCL's negligence.  As discussed above, he also fails to meet the elements of trespass 
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              D.  Loss of Lateral Support

       Evarone contends that the defendants' construction activities caused soil 
erosion and land movement, resulting in loss of lateral and subjacent23 support to his 

property.  

       The right to lateral support of real property is "well established" in Washington.  

Klebs v. Yim, 54 Wn. App. 41, 44, 772 P.2d 523 (1989).  In Klebs, we reasoned that 

when the plaintiff's land is burdened by heavy structures such as buildings, the plaintiff 

must show not only that the defendant's acts caused the plaintiff's land to fall in 

laterally, but also that the land would have fallen in without the weight of the structures

or other improvements:

       "An adjoining [land] owner who causes his neighbor's property to slide and slip 
       because of loss of lateral support is liable in damages resulting therefrom under 
       the constitution and law of the state regardless of negligence.  However, the 
       sliding and slipping of the soil must occur because of its own weight and not 
       because of the superimposed weight of the buildings or improvements placed 
       thereon."

Klebs, 54 Wn. App. at 44 (alteration in original) (quoting Simons v. Tri-State Constr. 

Co., 33 Wn. App. 315, 319, 655 P.2d 703 (1982).  The plaintiff has the burden of 

establishing that the land would have subsided even without improvements.  Klebs, 54 

or nuisance.  Regardless, he waived this claim when he refused to allow LCL to repair 
the damage soon after it occurred.  

       23 While Evarone's complaint alleges loss of both lateral and subjacent support, 
he made no argument supporting his subjacent support claim below and similarly fails 
to brief or argue that claim on appeal.  We thus decline to consider Evarone's 
subjacent support claim and address only his claim for loss of lateral support.  See In re 
Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 310-11, 962 P.2d 813 (1998) 
(declining to address insufficiently briefed challenges).

                                            -22- 

66176-1-I/23

Wn. App. 

at 47.    

       At common law, the right of the owner to damages for loss of lateral support in 
       the absence of negligence extended only to the land in its natural state.  
       However, under the constitution, the owner is entitled to damages not only to the 
       land in its natural state but also to the buildings and improvements on the 
       property once it is demonstrated that additional lateral thrust from the weight of 
       the improvements has not precipitated or caused the damages.  

Simons, 33 Wn. App. at 319-20 (emphasis added).  Fill is "an artificial structure or 

condition" to which the right of lateral support does not extend.  Bay v. Hein, 9 Wn. 

App. 774, 776-77, 515 P.2d 536 (1973).

       As discussed above, Evarone provides insufficient evidence to show that the 

defendants' activities caused the alleged soil movement.  Evarone also fails to show 

that his land would have subsided in its natural state -- without the weight of the 

improvements as required under Klebs.  Neither Wentworth's final report nor his 

deposition addresses this issue.  Fenton discussed soil movement but failed to address

whether the land would have subsided in the absence of its improvements -- the 

apartment building, rockery, retaining wall, and the fill.  The trial court properly granted 
summary judgment dismissing Evarone's loss of lateral support claim.24

       Fruhling's Motion to Strike and Evarone's Motion for Reconsideration

       Evarone moved for reconsideration on August 12, 2010.  He submitted several 
new declarations, but Fruhling moved to strike them.25  The trial court granted 

       24 Given our resolution of the lateral support claim, we need not address 
Evarone's diminished value contention.

       25 LCL, Seneca, and Horizon House joined Fruhling's motion.  

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66176-1-I/24

Fruhling's motion, ruling the four documents at issue were not "new evidence" as 

contemplated by CR 59(a)(4) and Evarone failed to "provide a sufficient reason why 

any or all of the declarations could not be offered earlier." The court also denied 

Evarone's motion for reconsideration.  Evarone appeals both orders.  But he devotes 

no argument to these issues aside from a single sentence in his introduction stating we 

should reverse the trial court's denial of his motion for reconsideration and a single 

statement in his conclusion that "[a]ll of [the trial court's] rulings, along with [its] refusal 

to reconsider its entry of summary judgment were erroneous and warrant reversal."  

Appellant's Br. at 41.  We need not consider these issues further.  See RAP 10.3(a)(4)-

(5); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 

(1992) (noting appellate courts need not consider arguments not supported by 

reference to the record 

or citation of authority); Haskell, 136 Wn.2d at 310-11 (declining to address 
insufficiently briefed challenges).26  

       Fees and Costs on Appeal

       Fruhling contends that Evarone's appeal was frivolous and requests an award of 
attorney fees and costs on appeal.27  RAP 18.9(a) allows the appellate court, on its own 

       26 Evarone also appeals the trial court's July 30, 2010 denial of his request for a 
CR 56(f) continuance.  But Evarone neither assigns error to that order nor mentions it 
in his briefing.  For the same reasons discussed above, we need not consider that 
portion of his appeal.

       27 Fruhling requests an award of fees pursuant to RAP 18.1 and 18.9, CR 11, 
and RCW 4.84.185.
                                            -24- 

66176-1-I/25

initiative or on motion of a party, to order a party or counsel who files a frivolous appeal "to pay 

terms or compensatory damages to any other party who has been harmed by the delay 

or the failure to comply or to pay sanctions to the court."  "An appeal is frivolous if, 

considering the entire record, 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."  Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 

906, 151 P.3d 219 (2007).  "A frivolous action is one that cannot be supported by any 

rational argument on the law or facts."  Rhinehart v. Seattle Times, 59 Wn. App. 332, 

340, 798 P.2d 1155 (1990).  We resolve doubts in favor of the appellant.  Lutz Tile, 136 

Wn. App. at 906.

       Resolving all doubts in Evarone's favor, his arguments are not so devoid of merit 

that sanctions or fees are appropriate. We decline to award Fruhling fees and costs.  

                                        CONCLUSION

       Because Evarone raises no issues of material fact regarding any of his claims, 

we affirm the summary judgment dismissal order.  

WE CONCUR:

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