When Words Count: Terms of Art in Unjust Enrichment and Trespass Claims

From the Desk of Melanie Rose:

Legal terminology is important when a court is interpreting statutes and case law. Words like “damage”, “intentional”, and “confer a benefit” are all terms of art in the legal field. Often, decisions made by the court can hinge on the exact definition and meaning of one or two words.  

Claims Pointer:

In a recent decision, the Washington Court of Appeals had to determine what the terms “confer a benefit,” “damages,” and “intentional” meant in the context of unjust enrichment and trespass claims. The definition of these terms made all the difference when the Court of Appeals decided which trial court holdings they wanted to affirm and which they wanted to reverse. In this case, the Court of Appeals concluded that, based on the use of the term “damages”, the fourth element of a trespass claim is actual and substantial damages and does not require a showing of physical damage to the property and that for a trespass to be intentional, it must be committed “with knowledge and reasonable foreseeability that the act would disturb the Plaintiff’s possession”.

Lavington v. Hillier, 54541-1-II, 2022 WL 1638234 (Wash. Ct. App. May 24, 2022).

Facts:

The Hilliers owned property adjacent to Lisa Lavington’s property. Historically, the Hilliers used a driveway on Lavington’s property as a second access to their property.

In 2014, the Hilliers undertook a construction project on their property and asked Lavington if she would grant them a formal easement for use of her driveway. Lavington denied the request. In November, the Hilliers began construction and hired Parsons as their general contractor. The Hilliers told Parsons to use Lavington’s driveway as needed for parking to access the construction site. When Lavington saw Parsons was using her driveway, she asked the foreman of the crew to stop doing so and informed them that they did not have permission to use her property. Parsons stopped the use of Lavington’s driveway immediately.

Lavington then filed a complaint against the Hilliers and Parsons for intentional trespass and unjust enrichment. During Lavington’s deposition, she acknowledged that she did not give anything to the Hilliers that benefited them. Instead, she said that the Hilliers received a benefit from using the driveway because they saved money on construction costs. Lavington submitted a declaration from an expert that estimated the Hilliers saved around $80,000 by using Lavington’s driveway.

In response to Lavington’s claims of emotional distress caused by the incident, the Hilliers requested production of Lavington’s medical records and mental health records, in order to evaluate Lavington’s emotional distress damages. Lavington did not produce any medical records. The Hilliers then motioned to compel production of Lavington’s medical records. The trial court granted the motion and ordered Lavington to produce her medical records. Lavington did not do as the trial court ordered. As a sanction for failing to comply with the order to produce records, the trial court granted the Hilliers and Parsons motion to strike Lavington’s claim for emotional distress damages.

The Hilliers and Parsons moved for partial summary judgment dismissal of Lavington’s unjust enrichment claim, arguing that Lavington had no evidence that she conferred a benefit on the Hilliers or Parsons. The trial court granted the motion.

Additionally, the Hilliers and Parsons jointly moved for dismissal of Lavington’s intentional trespass claim under CR 41(b)(3), which was granted by the trial court. The trial court found that dismissal of the trespass claim was proper because since Lavington did not prove that she suffered actual and substantial damages from the trespass and Parsons did not intentionally trespass on Lavington’s driveway, because Parsons was unaware that permission to use the driveway was lacking.

After trial, Lavington appealed, arguing that the trial court erred in issuing the extreme sanction of striking her emotional distress claim and in dismissing her claims of unjust enrichment and intentional trespass.

Law:

Discovery Sanctions

Under CR 37(b)(2), a trial court has the discretion to impose sanctions against a party who fails to comply with discovery orders. Generally, a trial court should impose the least severe sanction that would adequately serve the purposes of sanctions—to compensate the harmed party, deter, punish, educate the wrongdoer, and ensure the wrongdoer does not profit from the wrong.

Before a trial court can impose a “harsher remedy” for a discovery violation, it must consider the Burnet factors: (1) whether the violation was willful or deliberate, (2) whether the violation substantially prejudiced the opposing party’s ability to prepare for trial, and (3) whether lesser sanctions probably would suffice.

A failure to consider the Burnet factors is subject to a harmless error analysis. The harmless error test states that an error is harmless when it does not materially affect the outcome of the trial. Needham v. Dreyer, 11 Wn. App. 2d 479, 454 P.3d 136 (2019).

Unjust Enrichment

Unjust enrichment is a cause of action for an implied contract that allows a plaintiff to recover for the value of a benefit that the defendant retained even though there isno formal contractual relationship. An unjust enrichment claim is based on equity and fairness. Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (2008). There are 3 elements that must be satisfied to make a claim for unjust enrichment. The first and most important element to the discussion in this case requires that the plaintiff confer a benefit on the defendant.

Trespass

A trespass is an intentional invasion of the plaintiff’s exclusive possession of property. A defendant is liable to the plaintiff for trespass “irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other.” Restatement (Second) of Torts § 158 (Am. Law. Inst. 1965). The elements of a trespass claim are: (1) an invasion of the plaintiff’s interest in the exclusive possession of his property, (2) committed intentionally, (3) with the knowledge and reasonable foreseeability that the act would disturb the plaintiff’s possession, and (4) caused actual and substantial damages. Bradley v. Am. Smelting & Refining Co., 104 Wn.2d 677, 692-93, 709 P.2d 782 (1985).

Analysis:  

On these case facts, The Court of Appeals agreed that the trial court erred in striking Plaintiff’s claim for emotional distress damages because it did not consider the Burnet factors before issuing the sanction. The Court then had to determine whether the error in striking the claim was harmless. To do this, the Court began with the underlying legal principles of trespass to determine whether Lavington failed to show actual and substantial damages as required in the last element of a trespass claim. The Hilliers argued that the error was harmless because Lavington failed to show actual and substantial physical damage to her property and thus could not recover emotional distress damages anyway.

The Court pointed out that the fourth element of a trespass claim requires “actual and substantial damages”, plural. According to the Court of Appeals, the term “damages” refers to compensation a person can recover in a lawsuit for an injury or loss, while the term “damage” refers to some physical harm to a person or property. The Court concludes that based on the use of the term “damages”, that the fourth element of a trespass claim is actual and substantial damages and does not require a showing of physical damage to the property. Further, the Court stated that since liability can exist without some physical damage to the property, there is no reason that emotional distress cannot constitute actual and substantial damages. Thus, the Court concluded, if Lavington could sustain her burden of proof, emotional distress damages could constitute actual and substantial damages sufficient to support an intentional trespass claim. The Court of Appeals, therefore, found that striking Lavington’s emotional distress claim was not harmless and reversed the sanction order.

Coming to this conclusion, the Court of Appeals held that the trial court erred in dismissing the intentional trespass claims against the Hilliers, as Lavington was incorrectly denied a chance to present evidence regarding her emotional distress.

As to the trial court’s dismissal of the intentional trespass claims against the Parsons, the Court of Appeals affirmed that decision because it was based on other grounds. In particular, Parsons argued that Parsons did not know about trespass because Parsons was never told that the driveway belonged to Lavington or that Parsons was not authorized to use the driveway.

In examining whether Parsons needed actual knowledge that a trespass was occurring in order to be liable, the Court of Appeals articulated that in order to prove an intentional trespass, a plaintiff must be able to show: (1) an invasion of plaintiff’s interest in the exclusive possession of his property, (2) committed intentionally, (3) with the knowledge and reasonable foreseeability that the act would disturb the plaintiff’s possession, and (4) caused actual and substantial damages. The Court of Appeals held that because Parsons believed he had permission to use the driveway, he could not have been substantially certain that a trespass would result from his intentional actions.

Turning to Lavington’s appeal of the trial court’s dismissal of her unjust enrichment claim, the Washington Court of Appeals found that while the Hilliers received a benefit in using Lavington’s driveway, it was not a benefit received from the plaintiff. In other words, the Hilliers must have received a benefit from Lavington in order to bring a claim for unjust enrichment. The Court noted that Lavington did not confer any benefit on the Hilliers or on Parsons, and in fact the gravamen of her claim was that they simply took a benefit from her without permission. Therefore, as a matter of law, Lavington could not satisfy the first element of unjust enrichment.

The Big Picture:

(1) Winning a discovery sanction can eliminate entire causes of action, however it is important to know if judicial findings are necessary to support a sanction and be sure those findings are articulated in the sanction Order. (2) For a trespass claim, a plaintiff must show actual and substantial damages—meaning an economic loss. A plaintiff does not need to prove physical damage to property in order to prevail on the claim. (3) For an intentional trespass claim to survive, a plaintiff must show that at the time of the alleged trespass, the defendant had “knowledge and reasonable foreseeability that the act would disturb the plaintiff’s possession”. A defendant’s belief that they have permission to be upon the land—even if that belief is mistaken—is sufficient to overcome a claim of intentional trespass. (4) To be successful in an unjust enrichment claim, the plaintiff must have actually conveyed a benefit on to the defendant. It is not enough that the defendant simply take a benefit from the plaintiff.