LAWRENCE-BERRY, J.
¶ 1 Mark and Jennifer Hanna (the Hannas) appeal the trial court's summary judgment order and award of attorney fees and costs to respondents. The trial court ruled that respondents' easements over the Hannas' lot were valid, and awarded respondents their reasonable attorney fees and costs for defending what it found to be a frivolous action. The Hannas contend: (1) easements that preexist a short plat, but which are not depicted thereon, are extinguished by operation of law; (2) because such easements are extinguished, they cannot be revived because the Land Use Petition Act (LUPA), chapter
¶ 2 Prior to the short: subdivision that created Short Plat 1227-00, multiple easements were recorded that affected the property later owned by the Hannas. For instance, Avista Corporation's predecessor recorded multiple water storage and water overflow easements affecting the property. In addition, a "switchback" road crosses the property, and Harold and Patricia Crowston, Dan R. and Mary Ann Bond, Dan M. Bond and Annette Bond, Steve and Shannon Moser, and the Ryken Living Trust (collectively "the switchback road users") have recorded easements that permit them to use the switchback road for access to their properties.
¶ 3 In May 2000, Spokane County (the County) granted Marion Bond's short subdivision application, thereby approving the division of his property into Parcel 1, Parcel 2, and Parcel 3. Access to the subdivision is from the south. The southernmost lot is Parcel 1, Parcel 2 is in the middle, and Parcel 3 is northernmost. A lake used for recreation is located beyond the subdivision, to the northeast.
¶ 4 The first page of the County's findings of fact, conclusions, and decision makes reference to the switchback road:
Clerk's Papers (CP) at 364 (emphasis added). The decision indicates that "[t]he final short plat shall be designed substantially in conformance with the preliminary short plat of record." CP at 366, Additionally, the preliminary short plat shows a proposed 40-foot easement along the westernmost portion of Parcel 1 and Parcel 2. Because the easement extends along the entire western side of Parcel 2, we construe it as also benefiting Parcel 3.
¶ 5 The approved short plat was recorded on March 11, 2002. The short plat depicted the 40-foot easement, but the existing switchback road easement was absent. Avista's water storage and water overflow easements were not included in either the preliminary short plat or the short plat. According to the County's director of planning, the County's findings of fact, conclusions, and decision regarding Short Plat 1227-00 did not address or impact the preexisting easements, and the short plat is essentially a pictorial depiction of the County's approval (i.e., the required depictions and notes for approval of the subdivision).
¶ 6 The Margitans purchased Parcel 1 from Ms. Bond on April 6, 2002. Ms. Bond granted the Margitans two private road easements across Parcel 2 and Parcel 3 "along that portion of the presently existing [switchback road] which travels in a northwesterly direction then turns back and travels in a southeasterly direction."
¶ 7 In late June 2002, the Hannas granted Inland Power & Light a right-of-way easement to construct an electrical system, and keep the system clear of obstructions along a 10-foot wide path. The legal description of the easement broadly states, "Lot [sic] 2 of Short Plat 1227-00." CP at 384. The easement was recorded on March 25, 2003.
¶ 8 On February 1, 2010, the Margitans acquired Parcel 3 of Short Plat 1227-00. At the time of the approval of Short Plat 1227-00, Parcel 3 had an existing structure. The County's findings of fact, conclusions, and decision approving Short Plat 1227-00 states: "The site is currently undeveloped with the exception of the existing residence, boathouse and dock." CP at 364. The County director of planning later indicated that the existing structure was "grandfathered" into Short Plat 1227-00. CP at 490. On October 3, 2011, the Margitans were granted a permit to demolish and rebuild a portion of the grandfathered structure on Parcel 3. The permit did not constrain the new structure to the footprint of the grandfathered structure.
¶ 9 On October 12, 2012, the Hannas filed a quiet title complaint against the Margitans. The Hannas sought a declaration that the Margitans' two private road easements along the switchback road were invalid, either because they did not show a present intent to convey property, or because they were ineffective attempts to alter the short plat without formal amendment, as required by RCW 58.17.215.
¶ 10 On February 21, 2013, the Hannas moved for partial summary judgment, seeking an order that (1) the only easement was the 40-foot easement across the westernmost portions of Parcel 1 and Parcel 2, depicted on the face of the short plat, and (2) the short plat was a land use decision, unreviewable under LUPA's statute of limitations. On May 24, 2013, the trial court entered an order that stated:
CP at 260-61.
¶ 11 Inland Power & Light intervened on August 26, 2013. After Inland Power & Light's motion to add indispensable parties, the Hannas filed an amended complaint that included Avista and the switchback road users. The Hannas' amended complaint also alleged that the Margitans violated the building restrictions of Parcel 3 contained in the short plat. On October 13, 2014, Inland Power & Light moved for summary judgment on the basis that LUPA does not affect preexisting or subsequently granted easements. The Hannas moved for summary judgment on October 21, 2014, arguing that the creation of the final short plat map was a LUPA land use decision that extinguished the preexisting easements, no easement could be added over Parcel 2 without amending the final short plat map, all the defendants and the intervenor failed to appeal the LUPA land use decision within 21 days, and the Margitans constructed permanent structures outside the building area of Parcel 3. In December 2014, Avista, the Margitans, and the switchback road users moved for summary judgment on similar grounds as Inland Power & Light. The Margitans also argued that the Hannas could not challenge the remodel
¶ 12 The trial court granted summary judgment dismissal of the Hannas' claims against all of the respondents. After the trial court entered summary judgment, the respondents moved for attorney fees and costs pursuant to RCW 4.84.185, asserting that the dismissed claims were frivolous. The trial court granted the motions. The individual orders in favor of Inland Power & Light, the switchback road users, and the Margitans state that the trial court found that the claims asserted by the Hannas "were frivolous and advanced without reasonable cause." CP at 1085, 1092, 1117, 1136. The order in favor of Avista stated that the "alleged claims had no basis in law or fact as required by statute and established Washington case law." CP at 1109. Only the order regarding Inland Power & Light made specific findings, which stated "the plaintiffs failed to present any evidence to substantiate that a land use decision occurred that affected Inland Power and Light Co. or any of the other defendants; [and] Inland Power and Light Co. received a private easement grant that cannot be terminated by a land use decision." CP at 1085.
¶ 13 The Hannas timely appealed.
¶ 14 This court reviews an order granting summary judgment de novo. McDevitt v. Harbor View Med. Ctr., 179 Wn.2d 59, 64, 316 P.3d 469 (2013). Under de novo review, this court engages in the same inquiry as the trial court, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. M.K.K.I., Inc. v. Krueger, 135 Wn.App. 647, 653, 145 P.3d 411 (2006). 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). "A material fact is one upon which the outcome of the litigation depends in whole or in part." Atherton Condo. Apt.-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). Judgment as a matter of law is warranted "if reasonable people could reach one conclusion based on the evidence when viewing the facts in the light most favorable to the nonmoving party." O.S.T. v. Regence BlueShield, 181 Wn.2d 691, 703, 335 P.3d 416 (2014).
¶ 15 The Hannas first argue that the only valid easement burdening their property is the 40-foot road and utilities easement depicted on the face of the short plat. The Hannas claim that (1) the easements recorded prior to the short plat being recorded (belonging to Avista and the switchback road users) were extinguished by operation of law as they were omitted from the short plat, and (2) the easements purportedly created after the short plat was recorded (belonging to the Margitans and Inland Power & Light) are invalid because informal attempts to alter a short plat are ineffective.
¶ 16 "An easement is a property right separate from ownership that allows the use of another's land without compensation." M.K.K.I., 135 Wash.App. at 654, 145 P.3d 411. "An easement appurtenant is an irrevocable interest in land which has been obtained for duly given consideration." Kirk v. Tomulty, 66 Wn.App. 231, 238-39, 831 P.2d 792 (1992) (emphasis added). "Easements appurtenant become part of the realty which they benefit. Unless limited by the terms of creation or transfer, appurtenant easements follow possession of the dominant estate through successive transfers." Green v. Lupo, 32 Wn.App. 318, 323, 647 P.2d 51 (1982). "[A] successor in interest to the servient estate takes the estate subject to the easements if the successor had actual, constructive, or implied notice of the easement." 810 Props. v. Jump, 141 Wn.App. 688, 699, 170 P.3d 1209 (2007). "Recording the easement with the county auditor gives constructive notice to any successors in title." Wilhelm v. Beyersdorf, 100 Wn.App. 836, 846, 999 P.2d 54 (2000).
¶ 18 The Hannas fail to cite any authority to support their position that the omission of an easement in a short plat, by itself, extinguishes the easement. We find no authority either. The preexisting easements that the Hannas argue were extinguished are express easements that have been properly recorded. Moreover, had the legislature intended that a short plat omission could extinguish an easement, it would have required all easement holders to receive actual notice of a subdivision application so they could protect their interests before an unintentional deprivation occurred, instead, only nearby property owners are required actual notice before a subdivision of land. RCW 58.17.090(1)(b). We hold that easements omitted from a short plat are not, solely by their omission, extinguished. We, therefore, conclude that the trial court did not err when it confirmed the validity of the easements omitted from the short plat,
¶ 19 The Hannas also argue that once a short plat is recorded, a party cannot alter the subdivision by granting a private easement without formally amending the short plat. In support of their argument, they cite RCW 58.17.215 and M.K.K.I.
¶ 20 RCW 58.17.215 provides in relevant part:
¶ 21 In M.K.K.I., a landowner attempted to extinguish easements that were created in a short plat, but the landowner failed to comply with the formal requirements for amending the short plat. M.K.K.I., 135 Wash.App. at 650-53, 145 P.3d 411. We held that easements depicted in a short plat could not be extinguished without formally amending the short plat. Id. at 657-60, 145 P.3d 411. To permit one to informally change short plat depictions risks an illegal use that otherwise would be caught by an agency charged with reviewing the short plat. Even more obvious, to permit one to allow a use expressly prohibited by the notes contained on the short plat results in an illegal use. We therefore hold that changes to something depicted on a short plat, or changes that permit something expressly prohibited by the notes on the short plat, are ineffective unless the plat is formally amended as provided for in RCW 58.17.215.
¶ 22 Here, nothing in the short plat or the notes prohibited the owner of Parcel 2 or Parcel 3 from conveying an easement to Parcel 1 along the existing switchback road. Moreover, nothing in the short plat or the notes prohibited the owner of Parcel 2 from conveying a utility easement. Because there
¶ 23 The Hannas also argue that the two easements, recorded on April 17, 2002, from Ms. Bond to the Margitans are ineffective because they fail to convey a present interest in property. In support of their argument, they cite Zunino v. Rajewski, 140 Wn.App. 215, 165 P.3d 57 (2007). In Zunino, the purported easements were entitled "Private Road & Utility Easement[s]." Id. at 222, 165 P.3d 57. The documents stated, "`This agreement made and entered into [date], by the undersigned property owner, who is granting the easement across their property.'" Id. (emphasis added). The documents further state, "`Whereas this easement was created as a medium of ingress and egress for the benefit of...'" Id. This court held that the above language failed to convey an easement "because the words do not demonstrate a present intent to grant ... an easement." Id.
¶ 24 Here, the purported easements are entitled "Private Road Easement." CP at 710, 713. The documents state, "THIS AGREEMENT made and entered into [date], by the undersigned property owners, who are granting the easement across their property...." CP at 710, 713 (emphasis added). The documents further state, "WHEREAS this easement was created as a medium of ingress and egress for the benefit of...." CP at 710, 713 (emphasis added). The Zunino language and the language here is identical in all material respects.
¶ 25 The Margitans attempt to distinguish Zunino on the basis of background facts outside of the wording of the Zunino easements. Although the background facts in Zunino indicate that the "easement" grantor had no present intent to grant the easement, the Zunino court did not base its decision on these extrinsic facts. Rather, the Zunino court based its decision on the language used in the "easement" deeds.
¶ 26 We therefore must decide whether to follow this holding in Zunino or to overrule it. Although the grant language used in the easements before us is awkward and imprecise, we must be guided by the overarching rule for construing easements: "Courts interpret easement grants to give effect to the parties' original intent." Snyder v. Haynes, 152 Wn.App. 774, 779, 217 P.3d 787 (2009) (citing Brown v. Voss, 105 Wn.2d 366, 371, 715 P.2d 514 (1986)). "What the original parties intended is a question of fact and the legal consequence of that intent is a question of law." Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).
Id. (internal citations omitted).
¶ 27 Here, as in Zunino, we have imprecise, awkward language as to the present intent to grant an easement: One sentence is phrased in the present tense, while another sentence is phrased in the past tense. We also have two facts coming from extrinsic evidence. First, Ms. Bond, the easement grantor, had sold Parcel 1 to the Margitans 10 days before executing the documents under consideration. Second, the newly purchased Margitan lot was near a recreational lake, but without the easements conveyed, the Margitans would not have easy legal access to the lake. The extrinsic evidence here establishes only one thing — that on April 17, 2002, Ms. Bond had a present intent to convey the two easements to the Margitans. We therefore hold that the two private road easements from Ms. Bond to the Margitans are effective. To the extent that Zunino held that the easement deeds unambiguously did not convey an easement, we overrule Zunino. The result reached by the
¶ 28 Next, the Hannas argue that Short Plat 1227-00 does not contain a grandfather clause that allows the Margitans to build structures outside of the building area in Parcel 3.
¶ 29 The County's findings of fact, conclusions, and decision approving Short Plat 1227-00 states: "The site is currently undeveloped with the exception of the existing residence, boathouse and dock." CP at 364. The County director of planning later indicated that the existing structures were "grandfathered" into Short Plat 1227-00. CP at 490. Further, in 2011, the County granted the Margitans a permit to rebuild a residence on Parcel 3. Both the approval of Short Plat 1227-00, and the Margitans' rebuilding permit, constitute land use decisions under LUPA. See RCW 36.70C.020(2)(a). An unappealed LUPA land use decision, even if illegal, is final after 21 days and may not be challenged. Habitat Watch v. Skagit County, 155 Wn.2d 397, 407, 120 P.3d 56 (2005). The trial court correctly granted the Margitans summary judgment on this issue.
¶ 30 Finally, the Hannas challenge the trial court's award of attorney fees and costs to the respondents under RCW 4.84.185, which allows attorney fees for defending against a frivolous action. Specifically, the Hannas argue that their claims were not frivolous, and the trial court entered insufficient findings.
¶ 31 RCW 4.84.185 reads, in pertinent part,
¶ 32 "A frivolous action is one that cannot be supported by any rational argument on the law or facts." Rhinehart v. Seattle Times, Inc., 59 Wn.App. 332, 340, 798 P.2d 1155 (1990).
¶ 33 In Eller v. East Sprague Motors & R.V.'s, Inc., 159 Wn.App. 180, 194, 244 P.3d 447 (2010), we noted that an action involving multiple parties may, consistent with RCW 4.84.185, be frivolous as to one party, but not frivolous to another:
¶ 34 "The decision to make an award of attorney's fees under RCW 4.84.185 is left to the discretion of the trial court and will not be disturbed in the absence of a clear showing of abuse." Rhinehart, 59 Wash.App. at 339-40, 798 P.2d 1155. Under such standard, this court considers "whether the court's conclusion was the product of an exercise of discretion that was manifestly unreasonable or based on untenable grounds or reasons." Tiger Oil Corp. v. Dep't of Licensing, 88 Wn.App. 925, 938, 946 P.2d 1235 (1997). "If the trial court's ruling is based on an erroneous view of the law or involves application of an incorrect legal analysis, it necessarily abuses its discretion." Dix v. ICT Grp., Inc., 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
¶ 35 RCW 4.84.185 specifically provides that a court may award expenses of suit "upon written findings by the judge that the action ... was frivolous." "When the Washington legislature intends to require that an explicit finding must be made for a court to
136 Wn.App. 636, 650, 151 P.3d 211 (2007) (footnote omitted).
¶ 36 Here, in the order granting attorney fees and costs to Inland Power & Light, the trial court specifically found that "the plaintiffs failed to present any evidence to substantiate that a land use decision occurred that affected Inland Power and Light Co. or any of the other defendants." CP at 1085 (emphasis added). Although the remaining orders granting attorney fees and costs only contain the stock "frivolous and advanced without reasonable cause" language, the specific findings contained in Inland Power & Light's order are sufficient to allow this court to determine if the trial court abused its discretion.
¶ 37 As we noted above, there was no authority for the Hannas' argument that the recording of a short plat extinguishes easements not depicted on the short plat. For this reason, we conclude that the trial court did not abuse its discretion when finding the Hannas' actions against Avista and the switchback road users were frivolous in their entirety.
¶ 38 Also as noted above, the Hannas' argument that the 2002 Bond to Margitan private road easements were ineffective was based on Zunino, binding authority to the trial court. We therefore reverse the trial court's finding that the Hannas' action against the Margitans was frivolous in its entirety, and similarly vacate the award of fees and costs under RCW 4.84.185.
¶ 39 We next consider whether the award of attorney fees and costs under RCW 4.84.185 to Inland Power & Light was an abuse of discretion. The Hannas' RCW 58.17.215 argument has some statutory support. RCW 58.17.215 requires an alteration to a short plat to be made through a formal short plat amendment. Adding an easement that is not depicted on a short plat is arguably an "alteration." Because the Hannas' argument was supported by a rationale argument on the law and facts, we hold that the trial court abused its discretion when awarding attorney fees and costs to Inland Power & Light, and similarly vacate the award of fees and costs under RCW 4.84.185.
¶ 40 Most of the respondents have requested an award of attorney fees under RCW 4.84.185 and/or RAP 18.9(a). Attorney fees for a frivolous appeal are available only under RAP 18.9(a). Because RCW 4.84.185 requires written findings to support an award of attorney fees for a frivolous claim, and appellate courts do not make findings, RCW 4.84.185 does not authorize an award of fees on appeal. See Bill of Rights Legal Found. v. Evergreen State Coll., 44 Wn.App. 690, 697, 723 P.2d 483 (1986) (RCW 4.84.185 "is not a basis for recovery of fees on appeal.").
¶ 41 Only Avista and Inland Power & Light request an award of attorney fees for a frivolous appeal under RAP 18.9(a).
¶ 42 Here, the Hannas prevailed on issues relating to the trial court's award of attorney fees and costs pursuant to RCW 4.84.185 against the Margitans and Inland Power & Light. Because the Hannas' appeal was not totally devoid of merit, we deny Avista's and Inland Power & Light's requests for attorney fees under RAP 18.9(a).
¶ 43 Affirmed; reversed in part.
WE CONCUR: KORSMO, J. (result only), and FEARING, C.J.