Lane v. Skamania County
In Lane v. Skamania County, 164 Wn. App. 490, 265 P.3d 156 (Wash. Ct. App. 2011) the Court of Appeals of Washington further addressed the issue of foresight, an issue key to the appeal currently before us. In Lane, the Lanes sued to enforce a restrictive covenant and permanently enjoin the L'Hommedieus from installing an additional septic tank. Id. at 158.
After the L'Hommedieus filed an answer, the trial court granted partial summary judgment on the restrictive covenant issue in favor of the L'Hommedieus, and that decision was appealed and later reversed and remanded. Id.
Then, at a bench trial, the L'Hommedieus argued for damages and attorney fees as a result of the Lanes "wrongfully enjoining" them from installing the tank, but they did not argue for damages or attorney fees on the basis of a wrongfully filed lis pendens against their property. Id.
Later in the proceedings, the L'Hommedieus moved to supplement their pleadings to add they were entitled to damages on the basis of a wrongfully filed lis pendens. Id. at 159. Under the applicable lis pendens statute, their counterclaim did not mature until they obtained judgment in their favor in defending the first action. Id. Nevertheless, the trial court denied their motion, observing that the L'Hommedieus failed to assert a compulsory counterclaim as soon as the lis pendens was filed. Id.
In affirming the trial court's decision on appeal, the appellate court acknowledged that the exception to the compulsory counterclaim requirement, which applies when a claim is not yet ripe or mature, does not apply in certain situations.
Specifically, the appellate court held:
". . . The exception to the compulsory counterclaim requirement necessarily encompasses a claim that depends upon the outcome of some other lawsuit and thus does not come into existence until the action upon which it is based has terminated. . . . However, a counterclaim will not be denied treatment as a compulsory counterclaim solely because recovery on it depends on the outcome of the main action. This approach seems sound when the counterclaim is based on pre-action events and only the right to relief depends upon the outcome of the main action." Id. at 161.