Garcia v. Henley ( 2018 )

This opinion was filed for record
yri IN CLERK* OPPICE
OOU^I^1^OF VI»£H9«R]N
!OFVIȣ
at R'W0
Wn.2d 143,437 P.2d 908,449 P.2d 800, 450 P.2d 815(1968) and reaffirmed in
Proctor V. Huntington, 169 Wn.2d 491, 238 P.3d 1117(2010). The burden of
showing each element by clear and convincing evidence lies with the encroacher.
Arnold, 75 Wn.2d at 152. If this burden is not carried, failure to enter an otherwise
warranted ejectment order is reversible error. Because the respondents failed to carry
their burden, we reverse and remand to the trial court for the entry ofjudgment
consistent with this ruling.
FACTS
Ricardo and Luz Garcia and Ted and Andean Henley are neighbors in Tieton,
Washington. The two families' plots share a boundary line separated by a fence. The
Henleys rebuilt the boundary fence multiple times during the 1990s. Each time, the
fence crept farther and farther onto the Garcia property. The largest encroachment,
extending a foot across the boundary line, occurred in 1997 while the Garcias were on
vacation. The Garcias objected to this intrusion, but took no legal or other action. In
2011, the Henleys again moved the fence. Mr. Garcia placed apple bins along a
portion ofthe 1997 fence to prevent the Henleys from creeping farther onto the
property. As a result, the 2011 fence tracked the 1997 fence for that shielded portion,
but arced onto the Garcia plot for the 67 feet that did not have apple bins protecting it,
encroaching an additional half foot. The Garcias again requested that the Henleys
move the fence, and the Henleys refused.
Garcia v. Henley
No. 94511-0
The Garcias initiated suit in 2012, seeking ejectment and damages. The
Henleys counterclaimed, seeking to quiet title in their name. In closing argument, the
Henleys raised the doctrine of"[d]e [mjinimis [ejncroachment" to argue that any
minor deviation from the boundary line ofthe adversely possessed property should be
disregarded. Verbatim Report ofProceeding (Oct. 14, 2015) at 146. The Garcias
responded in their closing argument that "de minimis encroachment" was equivalent
to "balanc[ing][the] equities," and orally cited Proctor before briefly summarizing
why the five elements from Proctor and Arnold were not met. Id. at 149-50.
The judge determined that the Henleys had adversely possessed the land
encompassed by the 1997 fence, roughly 288 square feet. However,the judge also
found that the 2011 fence encroached an additional 33.5 square feet, and that the 2011
sliver had not been adversely possessed. Rather than grant an injunction ordering the
Henleys to abate the continuing trespass and move the fence, the trial court ordered
the Garcias to sell the 2011 sliver to the Henleys for $500. The judge failed to enter
findings offact regarding the Arnold elements. The Garcias appealed, alleging that
the trial court erred by not entering findings relating to each ofthe five Arnold
elements. The Court of Appeals affirmed, over a dissent in part by Chief Judge
Fearing. Garcia v. Henley, noted at 198 Wn. App. 1037(2017). The Garcias
appealed to this court, and we granted review. Garcia v. Henley, 189 Wn. 2d 1002,
Garcia v. Henley
No. 94511-0
400 P.3d 1249(2017). At issue is solely whether the fence should be relocated to the
boundary line as set by the 1997 fence. We hold that it should.
ISSUE
Did the trial court err by failing to order ejectment of a trespassing structure
without reasoning through the Arnold factors?
ANALYSIS
This court first set forth the relevant test in a 1968 case with similar facts.
Arnold,75 Wn.2d at 143. Due to a shared misapprehension ofthe property line, the
Arnolds' fence, two comers oftheir house, and a set of concrete steps encroached on
the Melani estate. Id. at 145. The Melanis engaged in self-help and removed the
encroaching fence, and petitioned the court for a mandatory injunction compelling
removal of the other encroachments. Id.
This court addressed the potential equitable bases for declining to issue such an
injunction, despite it being the typical property remedy, and instead issue a damages
award and compel the landowner to convey a property interest to the encroacher under
a liability approach. Id. at 146-53. After surveying precedential cases, Arnold set
forth the "test for when a court may substitute a liability mle for the traditional
property mle in encroachment cases." Proctor, 169 Wn.2d at 500.
[A] mandatory injunction can be withheld as oppressive when, as here, it
appears .. . that:(1)The encroacher did not simply take a calculated
risk, act in bad faith, or negligently, willfully or indifferently locate the
encroaching stmcture;(2)the damage to the landowner was slight and
Garcia v. Henley
No. 94511-0
the benefit ofremoval equally small;(3)there was ample remaining
room for a structure suitable for the area and no real limitation on the
property's future use;(4) it is impractical to move the structure as built;
and (5)there is an enormous disparity in resulting hardships.
Arnold,75 Wn.2d at 152. In Proctor, we reaffirmed the application of this five-part
test and noted that due to its equitable nature, the question of whether each Arnold
element has been met should be analyzed using the "inherently flexible and fact-
specific" equitable power ofthe court to fashion remedies that do equity. Proctor,
169 Wn.2d at 503. We reaffirmed that a "court asked to eject an encroacher must
instead reason through the Arnold elements as part of its duty to achieve fairness
between the parties." Id.Despite this mandate, the trial court in this case made no specific findings
regarding the Arnold elements. The only conclusion oflaw or finding offact relating
to Arnold or Proctor is conclusion oflaw 6, which reads in its entirety:
Although Plaintiffs typically would be entitled to an injunction, the
Washington Supreme Court in Proctor v. Huntington, 169 Wash.2d 491,
238 P.3d 1117(2010)recognized in certain adverse possession cases that
equitable principles may dictate a different result as to an appropriate
remedy. The court concludes that this case does warrant application of
such equitable principles, and thus the court concludes that the fence
between the Plaintiffs' and Defendants' properties should remain in its
current location, and that title to the Plaintiffs' property that is subject to
ejectment should be granted to the Defendants.
Clerk's Papers(CP)at 74-75. The Garcias moved for reconsideration in part because
the court failed to '"reason through the Arnold elements.'" Id. at 85 (quoting Proctor,
169 Wn.2d at 503). That motion was denied.
Garcia v. Henley
No. 94511-0
The question before this court is whether the trial court erred in compelling the
sale of the Garcias' land without making findings of fact for each Arnold element.
Generally,"findings of fact need not be made concerning every contention made by
parties to a case." Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 707, 592 P.2d 631(1979). However,"a finding must be made as to all ofthe 'material issues.'" Id.(quoting Bowman v. Webster,42 Wn.2d 129, 134, 253 P.2d 934(1953); Wold v.
Wold, 7 Wn. App. 872, 875, 503 P.2d 118 (1972)). As this court said m Daughtry, all
that is required is that the trial court inform the appellate court, on material issues,
"'what questions were decided by the trial court, and the manner in which they were
decided.'" Id. (internal quotation marks omitted)(quoting Bowman,42 Wn.2d at
134). This provides appellate courts the ability to determine "whether there was
substantial evidence to support the findings which are challenged in appellant's
assignments of error." State v. Marchand,62 Wn.2d 767, 770, 384 P.2d 865 (1963).
The trial court's failure to enter findings of fact in this case precludes this court from
determining whether the trial court found each Arnold element by clear and
convincing evidence, the appropriate evidentiary standard.
This court generally cannot make findings of fact, and will not endeavor to do
so based on an incomplete record in which neither party properly briefed or argued the
Arnold elements. See Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343
P.2d 183 (1959). In Old Windmill Ranch v. Smotherman,69 Wn.2d 383, 390,418
Garcia v. Henley
No. 94511-0
P.2d 720(1966), this court collected cases in which it reversed judgments and
remanded the cases to the trial court for the purpose of making material findings of
fact that had been omitted. Typically, this would be the disposition of a case such as
this one. However, because the burden of proof regarding the Arnold elements lies
with the encroaching party, this court need not make any findings of fact in order to
reverse the trial court's order.
Because a court-ordered conveyance of property from a rightful landowner to
an encroacher is "exceptional relief for the exceptional case," we held in Arnold that
"the evidence ofthe elements listed above" must be "clearly and convincingly proven
by the encroacher." Arnold, 75 Wn.2d at 152. Nothing in Proctor changed that
allocation ofthe burden of proof. The absence of findings of fact relating to the
Arnold elements is equivalent to a finding oftheir absence. Pacesetter Real Estate,
Inc. V. Fasules, 53 Wn. App. 463, 475, 767 P.2d 961 (1989). Because the Henleys
failed to carry their burden of proof, the trial court erred in failing to issue an
injunction compelling removal ofthe encroaching fence.
CONCLUSION
An encroacher bears the burden of establishing the existence of each Arnold
element by clear and convincing evidence before a trial court may deny a landowner
an injunction ordering ejectment of an encroaching structure. Because the Henleys
Garcia v. Henley
No. 94511-0
failed to carry this burden, the trial eourt erred. Accordingly, we reverse and remand
to the trial court for the entry ofjudgment consistent with this ruling.
Garcia v. Henley
No. 94511-0
7.
WE CONCUR:
Ricardo G. Garcia & Luz Garcia v. Ted Henley & Andean Henley, No. 94511-0
Yu, J.(concurring)
No. 94511-0
YU,J.(concurring) — I agree with the result the majority reaches in this
case. However, I would go one step further and explicitly hold that trial courts
must always enter findings of fact and conclusions oflaw when denying a rightful
owner's request for an injunction to remove a trespasser from private property. I
therefore respectfully concur.
Petitioners Ricardo and Luz Garcia proved that respondents Ted and Andean
Henley wrongfully built their fence on the Garcias' property. The Garcias were
therefore presumptively entitled to an injunction ordering the Henleys to remove
the fence and stop violating the Garcias' sacred right to the exclusive use and
possession oftheir private property. Proctor v. Huntington, 169 Wn.2d 491, 504,
238 P.3d 1117(2010); Arnold V. Melani, 75 Wn.2d 143, 152, 437 P.2d 908, 449
P.2d 800, 450P.2d 815 (1968).
The only way for a trespasser to avoid such an injunction is to prove all five
of the Arnold elements by clear and convincing evidence. Arnold, 75 Wn.2d at
Ricardo G. Garcia & Luz Garcia v. Ted Henley & Andean Henley, No. 94511-0
Yu, J.(concurring)
152. If the trespasser meets this burden, then the court may deny an injunction to
the rightful owner, and instead order an equitable remedy that compensates the
owner but does not require the trespasser to leave. Proctor, 169 Wn.2d at 500.
The trial court in this case did attempt to fashion such an equitable remedy,
essentially ordering the Garcias to sell the encroached portion of their property to
the Henleys for $500. The Garcias appealed.
Where this type of order is entered without findings of fact and conclusions
oflaw about each Arnold element, as it was here, appellate courts can almost never
determine from the record whether the order was properly issued. Therefore, it is
almost always necessary to reverse and remand for the entry offindings and
conclusions. Garcia v. Henley, No. 34189-5-III, slip op. at 4-5(Wash. Ct. App.
Apr. 11, 2017)(unpublished)(Fearing, C.J., dissenting in part),
http://www.courts.wa.gov/opinions/pdf/341895_unp.pdf. To avoid such
inefficiency in future cases, I would explicitly hold that trial courts must enter
findings of fact and conclusions oflaw on each Arnold element in all cases where a
private property owner is denied an injunction to eject a proven trespasser.
However,I agree with the majority in result that this is one ofthe rare cases
where we can simply reverse, rather than remanding for the entry offindings and
conclusions. The record does not indicate that the trial court actually found that
the Henleys failed to meet their burden and then merely neglected to enter those
Ricardo G. Garcia & Luz Garcia v. Ted Henley & Andean Henley, No. 94511-0
Yu, J.(concurring)
findings. Contra majority at 7("The absence of findings of fact relating to the
Arnold elements is equivalent to a finding oftheir absence."). We cannot know for
certain what the trial court thought, but we do know that the court denied the
Garcias' request for an injunction to eject the Henleys without stating any factual
basis for doing so. This can indicate only that the trial court failed to undertake the
appropriate analysis of the Arnold elements and did not make the necessary
findings in the first place. The court's failure to do so was likely caused by the
Henleys' failure to properly raise that issue, neglecting to even allude to either
Arnold or Proctor in their answer to the complaint, in their trial brief, or at any
other point in the proceedings prior to closing argument at the bench trial. See
majority at 3; Garcia, slip op. at 5-6 (Fearing, C.J., dissenting in part).
Thus, in this particular case, we can be certain ofthree dispositive points of
law and fact, allowing us to reverse based on the record presented rather than
remanding for the entry of explicit findings and conclusions. First, the
fundamental rule of encroachment law is that trespassers must bear the burden of
establishing by clear and convincing evidence that, despite their trespass, they are
entitled to stay where they are and pay damages to the rightful property owners.
Second, if the trespassers do not meet their burden, then the owners are absolutely
entitled to ejectment. And third, because it is indisputably clear from the record
that the Henleys never even pleaded that they should receive an equitable remedy
Ricardo G. Garcia & Luz Garcia v. Ted Henley & Andean Henley, No. 94511-0
Yu, J. (concurring)
instead of being ejected, the Garcias are entitled to ejectment as a matter oflaw.
Lybbert v. Grant County, 141 Wn.2d 29,40, 1 P.3d 1124(2000).
Therefore, I agree with the majority that an order must issue on remand
directing the Henleys to remove their fence from the Garcias' property. I
respectfully concur.
Ricardo G. Garcia & Luz Garcia v, Ted Henley (& Andean Henley, No. 94511-0
Yu, J.(concurring)