Darlington Ofuasia, Et Ux., Appellant/cross-resp v. Dana Smurr, Respondents/cross-app , 198 Wash. App. 133 ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
March 14, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DARLINGTON OFUASIA and ALENA No. 48145-6-II
OFUASIA, husband and wife,
Appellants/Cross-Respondents
v.
DANA WILLIAM SMURR, STEVEN and PUBLISHED OPINION
LORI LARSON, ROBERT MASON, and
CHUCK MASON,
Respondents/Cross-Appellants.
MELNICK, J. — Darlington and Alena Ofuasia appeal the trial court’s order granting Dana
Smurr’s motion for partial summary judgment to dismiss the Ofuasias’ trespass claims. Smurr
cross-appeals the trial court’s order granting the Ofuasias’ motion for partial summary judgment
on their adverse possession claim. We affirm the trial court on the adverse possession claim,
reverse on the trespass claims, and remand for further proceedings.
FACTS
I. BACKGROUND
The Ofuasias’ and Smurr’s properties are part of a residential subdivision that includes a
private road, NE 65th Street. Smurr’s property is located across the private road, north of the
Ofuasias’ property. The private road is a non-exclusive easement running east-west. It is subject
to a road maintenance agreement that requires property owners to not block the easement or
unreasonably interfere with its use. The west end of the easement includes a turn-around area that
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borders the western boundary of the Ofuasias’ property. The easement allows adjacent property
owners to access and maintain the road.
In July 2005, the Ofuasias purchased their property from David Harris. Two years prior to
the purchase, Harris built a chain link fence that ran along the property’s western boundary. The
fence encroached onto the turn-around area of the easement.
After the Ofuasias purchased the property, they built their house and landscaped the area
between the west side of their garage and the chain link fence. Boulders were placed in front of
the house near NE 65th Street as part of their landscaping efforts. They also planted arborvitae
along the west side of their garage. Sometime thereafter, the Ofuasias removed a section of the
chain link fence, from behind their garage to the property’s southern boundary. They installed a
wooden fence slightly east or “inside” of where the chain link fence had been. Clerk’s Papers (CP)
at 19. The Ofuasias left the metal posts from the chain link fence in the ground. They then
removed the remaining chain link fence near their garage and arborvitae, leaving the metal fence
posts. They continued to landscape and maintain the area up to the line created by the chain link
fence.
II. PROCEDURAL FACTS
A. ARBITRATION
In April 2013, pursuant to the road maintenance agreement, Smurr initiated an arbitration
action and sent the Ofuasias a statement of claim. The parties, without lawyers, arbitrated the
dispute before three arbitrators. Smurr argued that the Ofuasias were in violation of the road
maintenance agreement by installing boulders within the easement’s boundaries and by installing
a fence and planting shrubs within the turn-around area.
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The arbitrators ruled that the boulders had to be removed and that the fence should be
removed if encroachment was established by a proper survey paid for by Smurr. One of the
arbitrators dissented from this conclusion, stating that the Ofuasias may own the property based
on adverse possession because the wooden fence was built where the previous chain link fence
existed. In response to an inquiry, one of the arbitrators sent an e-mail to the Ofuasias that clarified
the decision. The e-mail stated that while removal of the boulders was required, the arbitrators did
not require removal of the fence. It further explained that if Smurr obtained a survey and “the
fence [was] in the right of way, then it MAY have to be removed, but, it may also be that adverse
possession has occurred.” CP at 150.
Approximately one week later, Smurr sent a letter to the Ofuasias informing them that he
hired a surveyor and that the survey confirmed the true boundaries of the properties. Smurr wrote
that, per the arbitrators’ decision, once a survey confirmed the Ofuasias’ west property boundary,
they were required to remove any encumbrances they placed in the turn-around area. Smurr also
stated that if the Ofuasias failed to remove the encumbrances within 30 days, he would remove
them himself.
The Ofuasias hired a lawyer who wrote to the arbitrators, moving to change or clarify the
arbitration decision pursuant to RCW 7.04A.200, .240. In their letter, the Ofuasias submitted that
the evidence presented at arbitration established that the original fence was erected on or before
January 23, 2003, and that they acquired the property at issue via adverse possession. Because the
Ofuasias owned the property, they argued it was no longer subject to the road maintenance
agreement. They also argued that, because the arbitrators’ decision was incomplete as it referenced
a survey which had not been completed, the arbitrators did not have authority to make a prospective
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decision based on evidence that was not before them. The Ofuasias served the letter to Smurr by
personal delivery.
Two days later, one of the arbitrators replied to the letter, clarifying their decision. The
letter stated, in relevant part:
There was evidence presented that the fence encroached into the “turn around”
easement. Although the fence may have existed since 2003 the issue of adverse
possession was not fully developed. We were unsure about the exact location of
the property line. A survey would have been helpful to determine where the fence
was actually located and our comment in that regard was simply a suggestion. We
did not intend to foreclose the possibility that Mr. Ofuasia could in a proper forum
plead and establish the necessary elements of adverse possession. The three
arbitrators have communicated via email and concur with the above statements.
CP at 27 (underline in original) (emphasis added).
The Ofuasias then replied to Smurr’s earlier letter. They stated that, through adverse
possession, they acquired the land where the fence sat and the land inside the fence. They enclosed
the arbitrator’s letter that clarified the decision. The Ofuasias stated that they did not need to
establish ownership of the land, but they had that remedy available to them if necessary. Should
Smurr damage, destroy, or remove the fence, they warned that he would be committing trespass
and may be held liable. One week later, Smurr removed the Ofuasias’ fence and cut down the
arborvitae trees.
B. LAWSUIT
On August 13, the Ofuasias filed suit for statutory1 and common law trespass and to quiet
title. They alleged that they owned the land in dispute by adverse possession and that they were
entitled to damages because of Smurr’s interference and damage to their land, fence, trees, and
landscaping. Smurr answered, arguing that, per the arbitrators’ decision, he obtained a survey and
1
RCW 4.24.630; RCW 64.12.030.
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was permitted to remove the fence. He also asserted that the Ofuasias’ claims were precluded
because they were litigated to a final determination at arbitration.
The Ofuasias filed a motion for partial summary judgment regarding their adverse
possession and trespass claims. Smurr responded to the motion, arguing that material issues of
fact existed as to both claims, that the Ofuasias could not “tack” Harris’ years of ownership to
theirs, and that the Ofuasias could not meet the hostility element of adverse possession. CP at 115.
He asserted that the Ofuasias moved out of their house for two and a half years and renters occupied
their home during that time. He also asserted that Harris installed the chain link fence as a barrier
to keep school children from crossing through the property, not as a boundary marker.
The trial court entered an order granting the Ofuasias’ motion for partial summary
judgment as to the adverse possession claim. The court found no disputed issues of material fact
existed and that the Ofuasias established the elements of adverse possession regarding the tract of
land at issue. The court also stated that the order was a final judgment on the Ofuasias’ adverse
possession claim. Regarding the trespass claims, the clerk’s minutes stated, “Trespass motion was
not ruled upon—denied at this time, Court advises parties may further address this issue . . . can
submit a motion for reconsideration on this issue.” CP at 124.
The Ofuasias moved for reconsideration on their trespass claims. They argued that Smurr
did not deny he intentionally removed the fence, arborvitae, and landscaping, and he essentially
conceded that if adverse possession was found, liability for trespass logically followed. Because
the court found that they acquired the disputed property by adverse possession, the Ofuasias argued
that there were no material issues of fact as to whether Smurr trespassed by removing their fence
and arborvitae. The court denied the motion.
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Smurr subsequently filed a motion for partial summary judgment to dismiss the Ofuasias’
trespass claims. The trial court entered an order granting the motion.
The Ofuasias appeal the order granting Smurr’s motion for partial summary judgment
dismissing their trespass claims. Smurr cross-appeals, seeking review of the order granting the
Ofuasias’ partial summary judgment on their adverse possession claim.
ANALYSIS
I. SUMMARY JUDGMENT STANDARD OF REVIEW
We review an order granting summary judgment de novo, engaging in the same inquiry as
the trial court. Loeffelholz v. Univ. of Wash., 175 Wash. 2d 264, 271, 285 P.3d 854 (2012). Summary
judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). We construe
all facts and their reasonable inferences in the light most favorable to the nonmoving party.
Loeffelholz, 175 Wash. 2d at 271.
A party moving for summary judgment bears the initial burden of demonstrating that there
is no genuine issue of material fact. Right-Price Recreation, LLC v. Connells Prairie Cmty.
Council, 146 Wash. 2d 370, 381, 46 P.3d 789 (2002). “A material fact is one that affects the outcome
of the litigation.” Owen v. Burlington N. Santa Fe. R.R., 153 Wash. 2d 780, 789, 108 P.3d 1220
(2005). If the moving party satisfies its burden, the nonmoving party must set forth specific facts
demonstrating that a material fact remains in dispute. Loeffelholz, 175 Wash. 2d at 271. Conclusory
statements of fact do not suffice. Overton v. Consol. Ins. Co., 145 Wash. 2d 417, 430, 38 P.3d 322
(2002).
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Summary judgment is proper only if reasonable minds could reach but one conclusion from
the evidence presented. Bostain v. Food Express, Inc., 159 Wash. 2d 700, 708, 153 P.3d 846 (2007).
We may affirm summary judgment on any grounds supported by the record. Blue Diamond Grp.,
Inc. v. KB Seattle 1, Inc., 163 Wash. App. 449, 453, 266 P.3d 881 (2011).
II. ADVERSE POSSESSION CLAIM
A. THE ARBITRATION DECISION WAS NOT A FINAL JUDGMENT PRECLUDING THE
OFUASIAS’ ADVERSE POSSESSION CLAIM
Smurr argues that because the Ofuasias did not raise the issue of adverse possession at
arbitration, and because the arbitrators’ decision was final and binding, the principle of claim
splitting or res judicata precluded them from pursuing their adverse possession claim. We
disagree.
Filing two separate lawsuits based on the same event, or “claim splitting,” is prohibited.
Ensley v. Pitcher, 152 Wash. App. 891, 898, 222 P.3d 99 (2009). The doctrine of “res judicata” or
claim preclusion, rests on the ground that a matter that has been litigated, or on which there was
an opportunity to litigate in a prior action, should not be permitted to be litigated again. Ensley,
152 Wash. App. at 899. Res judicata bars claim splitting if the claims are based on the same cause
of action. Ensley, 152 Wash. App. at 899.
The threshold requirement of res judicata is a final judgment on the merits in a prior suit.
Hisle v. Todd Pac. Shipyards Corp., 151 Wash. 2d 853, 865, 93 P.3d 108 (2004). Once the threshold
requirement is met, res judicata requires the sameness of subject matter, cause of action, people
and parties, and the quality of the persons for or against whom the claim is made. Hisle, 151
Wash. 2d at 865-66. The party asserting defense of res judicata bears the burden of proof. Hisle, 151
Wash. 2d at 865. Whether res judicata bars an action is a question of law we review de novo. Ensley,
152 Wash. App. at 899.
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Here, the arbitrators’ decision and their subsequent correspondence clearly show that they
considered the adverse possession issue but did not make a final decision on it. The arbitrators’
decision stated that the fence should be removed if a property survey established an encroachment.
One of the arbitrators dissented from the conclusion “because adverse possession may have
occurred” based on testimony confirming that the fence was built where the previous chain link
fence existed. CP at 13. The post-decision letter from the arbitrators clarified the issue, stating
that “the issue of adverse possession was not fully developed . . . [w]e did not intend to foreclose
the possibility that Mr. Ofuasia could in a proper forum plead and establish the necessary elements
of adverse possession.” CP at 27.
Because the arbitrators’ decision did not involve a final decision on the adverse possession
claim, we conclude that res judicata does not bar the Ofuasias’ adverse possession claim in their
lawsuit.
B. EVIDENCE PRESENTED AT SUMMARY JUDGMENT SATISFIED THE ELEMENTS OF
ADVERSE POSSESSION
Smurr argues that the Ofuasias failed to establish the elements of an adverse possession
claim because they owned the property for less than eight years at the time of arbitration, they did
not provide evidence to show tacking with the predecessor-in-interest, and because they were
absent from their home for two years. He argues that a genuine issue of material fact existed
because removing the chain link fence was evidence that elements of adverse possession were no
longer being met.2 We disagree.
To establish a claim of adverse possession, the possession must be (1) exclusive, (2) actual
and uninterrupted, (3) open and notorious, and (4) hostile. Nickell v. Southview Homeowners
2
Smurr also argues that whether planting of arborvitae trees was sufficient evidence was not
adequately developed. We need not address this argument because of our resolution of the issue.
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Ass’n, 167 Wash. App. 42, 50, 271 P.3d 973 (2012). These elements must exist for ten years.
Nickell, 167 Wash. App. at 50; RCW 4.16.020. A claimant can satisfy the open and notorious
element by showing either that the title owner had actual notice of the adverse use throughout the
statutory period or that the claimant, or predecessor-in-interest, used the land such that any
reasonable person would have thought he owned it. Riley v. Andres, 107 Wash. App. 391, 396, 27
P.3d 618 (2001); Shelton v. Strickland, 106 Wash. App. 45, 51, 21 P.3d 1179 (2001). Hostility
requires “‘that the claimant treat the land as his own as against the world, throughout the statutory
period.’” Nickell, 167 Wash. App. at 50 (quoting Chaplin v. Sanders, 100 Wash. 2d 853, 860-61, 676
P.2d 431 (1984)). To interrupt adverse possession, there must be actual cessation of the
possession. Lingvall v. Bartmess, 97 Wash. App. 245, 256, 982 P.2d 690 (1999).
Fences are typical expressions of hostility, evidencing that an adverse possession claimant
is treating the land inside the fence “as [his] own as against the world.” Roy v. Cunningham, 46
Wash. App. 409, 413, 731 P.2d 526 (1986). The existence of a fence may be dispositive evidence
of hostile possession “‘[w]here a fence purports to be a line fence, rather than a random one, and
when it is effective in excluding an abutting owner from the unused part of a tract otherwise
generally in use, it constitutes prima facie evidence of hostile possession up to the fence.’” Acord
v. Petit, 174 Wash. App. 95, 107-09, 302 P.3d 1265 (2013) (quoting Wood v. Nelson, 57 Wash. 2d 539,
541, 358 P.2d 312 (1961)). Trees have also been used to mark a property’s boundary lines. Happy
Bunch, LLC v. Grandview N., LLC, 142 Wash. App. 81, 89-94, 173 P.3d 959 (2007).
“Tacking” periods of adverse possession with others is permitted if there is a reasonable
connection between the successive occupants that will raise their claim of right above the status of
wrongdoer or trespasser. Shelton, 106 Wash. App. at 52. Formal conveyance between the parties is
not essential to establish such a connection. Shelton, 106 Wash. App. at 52-53.
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Here, there was no issue of material fact as to the hostility requirement. Harris, the
Ofuasias’ predecessor-in-interest, installed a chain link fence in January 2003. The fence
surrounded three sides of the property, including the west side of what is now the Ofuasias’ house.
The fence remained there, continuously, until Harris sold the property to the Ofuasias. While no
evidence showed whether or not Harris occasionally maintained the property up to the fence line,
nothing in the record suggests anything to the contrary. The fence was a line or boundary fence,
not a random one, and excluded others from coming on to and using the property.
After Harris sold the property, the Ofuasias landscaped the area between their garage and
the chain link fence. They planted a row of arborvitae along the fence on the west side of their
garage. The evidence showed a clear demarcation between the landscaped yard and arborvitae
and the turn-around area. Sometime thereafter, the Ofuasias took down part of the chain link fence
in their backyard and they erected a new wooden fence slightly “inside” or east of where the chain
link fence was. CP at 19. They then removed the remainder of the chain link fence near their
garage, by the arborvitae. The metal posts from the chain link fence remained in the ground. The
Ofuasias maintained the wooden fence, weeded, watered and trimmed the arborvitae, and
continued to landscape up to the line created by the original chain link fence.
The evidence showed that the initial fencing purported to be a boundary fence and that the
Ofuasias’ possession and continued maintenance of the fence and surrounding area established
tacking with Harris’s possession of the property. The fencing was prima facie evidence of hostility
and, in the absence of any other evidence, was sufficient to support summary judgment on the
element. Smurr did not provide evidence or authority to establish the contrary.
Smurr argues that the Ofuasias’ absence from their home when they rented it disrupted
adverse possession of the disputed property. The evidence, however, showed that the Ofuasias
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continuously maintained the area along the original line of the chain link fence. Smurr provided
no evidence that the disputed property to the west was unattended or no longer held out as the
Ofuasias’ property. No evidence demonstrated actual cessation of the Ofuasias’ possession.
Smurr also argues that Harris’s construction of the fence cannot support adverse possession
because Harris did not intend his fence to be a boundary marker. CP at 91. However, this argument
is based only on Smurr’s declaration, which lacks foundation and speculates what Harris intended.
Becker v. Wash. State Univ., 165 Wash. App. 235, 245-46, 266 P.3d 893 (2011); CR 56(e).
Therefore, it cannot create a question of fact regarding adverse use.
In addition, Smurr did not present evidence or authority showing that removal of
approximately 30-feet of fencing, which was replaced by a row of arborvitae, established cessation
of adverse possession. The uncontroverted evidence showed that the original chain link fence
extended 80 feet, north to south, on the Ofuasias’ property. The Ofuasias’ new wooden fence only
extended 48 feet, south to north, and the original fence posts remained in the ground.
Here, the arborvitae trees marked the property’s boundary line. They, along with other
landscaping, were on the original chain link fence line. The arborvitae made a clear demarcation
between the Ofuasias’ property and the turn-around area. The Ofuasias continuously maintained
and landscaped the area up to the original fence line, weeding, watering, and trimming the
arborvitae. The line of arborvitae trees enclosed the Ofuasias’ property and they held the property
out as their own.
We conclude that because no genuine issue of material fact existed, the trial court did not
err in granting the Ofuasias’ motion for partial summary judgment regarding the adverse
possession claim.
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III. TRESPASS CLAIMS
The Ofuasias argue that the court erred in dismissing their statutory trespass claims because
Smurr’s actions were “wrongful” and without “lawful authority.” Br. of Appellant at 10. They
also argue that the court erred in dismissing their common law trespass claim because it had
different elements from the statutory trespass claims. Smurr argues that he acted with lawful
authority because he obtained a survey showing he was within the boundaries of the turn-around
area, and acted in accordance with the arbitrators’ decision. We conclude that the trial court erred
when it dismissed the trespass claims because genuine issues of material fact existed.
A. STATUTORY TRESPASS
The trespass statute, RCW 4.24.630(1), provides:
Every person who goes onto the land of another and who removes timber, crops,
minerals, or other similar valuable property from the land, or wrongfully causes
waste or injury to the land, or wrongfully injures personal property or
improvements to real estate on the land, is liable to the injured party for treble the
amount of the damages caused by the removal, waste, or injury. For purposes of
this section, a person acts “wrongfully” if the person intentionally and
unreasonably commits the act or acts while knowing, or having reason to know,
that he or she lacks authorization to so act.
(Emphasis added). “The statute establishes liability for three types of conduct occurring upon the
land of another: (1) removing valuable property from the land, (2) wrongfully causing waste or
injury to the land, and (3) wrongfully injuring personal property or real estate improvements on
the land.” Clipse v. Michels Pipeline Constr., Inc., 154 Wash. App. 573, 577-78, 225 P.3d 492
(2010). The requirement that the defendant act “wrongfully” means that the defendant knew or
had reason to know that he or she lacked authorization to act. Clipse, 154 Wash. App. at 579-80.
The timber trespass statute, RCW 64.12.030, provides, in relevant part:
Whenever any person shall cut down, girdle, or otherwise injure, or carry
off any tree . . . timber, or shrub on the land of another person . . . without lawful
authority, in an action by the person . . . against the person committing the
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trespasses or any of them, any judgment for the plaintiff shall be for treble the
amount of damages claimed or assessed.
(Emphasis added). Where a person, with knowledge of a bona fide boundary dispute, intentionally
enters the disputed area for purposes of destroying trees, and does destroy them, his acts are neither
casual nor involuntary, nor justifiable on the basis of believed ownership, but are without lawful
authority and will subject him to treble damages. Maier v. Giske, 154 Wash. App. 6, 21-22, 223
P.3d 1265 (2010) (citing Mullally v. Parks, 29 Wash. 2d 899, 911, 190 P.2d 107 (1948)). Mere
subjective belief in the right to cut the trees is not sufficient for mitigation of damages pursuant to
RCW 64.12.040. Happy Bunch, 142 Wash. App. at 96.
Here, the evidence showed that Smurr removed the Ofuasias’ fence after having the
property surveyed. Although the arbitrators clarified that the issue of adverse possession was not
fully developed, their original decision stated that Smurr may remove the fence if a survey showed
the property’s true boundary lines. Smurr argues that he relied on the survey, and removed the
fence because the arbitrators’ decision authorized him to do so.
However, title automatically vests in an adverse possession claimant when the
requirements of adverse possession have been satisfied for 10 years. Gorman v. City of
Woodinville, 175 Wash. 2d 68, 72, 283 P.3d 1082 (2012). The new title holder need not file suit to
perfect his or her interest. Gorman, 175 Wash. 2d at 74. As we ruled above, the Ofuasias satisfied
the adverse possession requirements by 2013. Therefore, they had title to the disputed property
when Smurr removed the fence. Given this fact, whether Smurr acted “wrongfully” constituted a
genuine issue of material fact.
Another issue of material fact existed as to whether Smurr had knowledge of a bona fide
boundary dispute and acted without lawful authority when he removed the arborvitae. As
discussed above, there was a genuine issue of material fact as to whether or not Smurr knew a bona
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fide boundary dispute existed. Further, the trial court’s ruling that the Ofuasias acquired title of
the contested property through adverse possession at least created a question of fact regarding their
trespass claims. We, therefore, conclude that the trial court erred by dismissing the Ofuasias’
statutory trespass claims because a genuine issue of material fact existed as to whether Smurr’s
actions were wrongful and done without lawful authority.
B. COMMON LAW TRESPASS
The Ofuasias argue that their common law trespass claim should not have been dismissed
because even if Smurr mistakenly believed the Ofuasias did not own the disputed land, the
undisputed facts show they established common law trespass. We conclude that the trial court
erred in dismissing this claim because a genuine issue of material fact existed.
Intentional trespass occurs when there is “‘(1) an invasion of property affecting an interest
in exclusive possession, (2) an intentional act, (3) reasonable foreseeability that the act would
disturb the plaintiff’s possessory interest, and (4) actual and substantial damages.’” Grundy v.
Brack Family Tr., 151 Wash. App. 557, 567, 213 P.3d 619 (2009) (quoting Wallace v. Lewis County,
134 Wash. App. 1, 15, 137 P.3d 101 (2006)). The intent element may include an act that the actor
undertakes realizing that there is a high probability of damage and disregarding the likely
consequences. Bradley v. Am. Smelting & Ref. Co., 104 Wash. 2d 677, 683-84, 709 P.2d 782 (1985).
Here, the trial court heard evidence that the arbitrators’ decision may not have given Smurr
authority to remove the fence or arborvitae. The trial court also ruled that the Ofuasias adversely
possessed the property in dispute. As with statutory trespass discussed above, this finding at least
created a question of fact regarding the Ofuasias’ common law trespass claim.
The Ofuasias also presented evidence that Smurr’s entry on the Ofuasias’ property and his
cutting the arborvitae and fence may have been an intentional act that was reasonably foreseen to
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disturb their possessory interest, causing actual and substantial damages. A genuine issue of
material fact existed as to whether in relying on the survey and arbitrators’ decision, Smurr could
have reasonably foreseen that his act would disturb property in the Ofuasias’ exclusive possession.
Therefore, we conclude that the trial court erred by dismissing the Ofuasias’ common law trespass
claim.
IV. ATTORNEY FEES
Smurr requests attorney fees pursuant to RAP 18.1. He argues that as the prevailing party,
he is entitled to an attorney fee award on the statutory trespass clam. Because there is no
prevailing party on this claim, we do not award fees.
We affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion.
Melnick, J.
We concur:
Johanson, J.
Maxa, A.C.J.
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