Lingering Pine Investments, Llc, Resp v. Rupesh And Suzy Khendry, Apps ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
LINGERING PINE INVESTMENTS,
LLC, a Washington limited liability No. 78962-7-I
company,
Respondent,
V.
RUPESH KHENDRY and SUZY UNPUBLISHED OPINION
KHENDRY, and the marital community
comprised thereof, FILED: November 12, 2019
Appellants.
VERELLEN, J. — Rupesh and Suzy Khendry appeal from the trial court order
granting summary judgment in favor of Lingering Pine Investments, LLC (LPI) on its
action to establish the parties' rights with respect to a tract of land. Because the
evidence did not give rise to any questions of fact regarding the property interests at
issue, we affirm the trial court's order.
FACTS
In 2006, Poplar Way, LLC obtained approval for a boundary line adjustment
increasing the size of a parcel of undeveloped land, Lot 6, it owned in the city of
Sammamish. As to Lot 6, the boundary line adjustment also stated: "Together with
No. 78962-7-1/2
an easement for ingress, egress, and utilities over, under, and across the south 20
feet of Lot 17 of said Plat."1 A map of adjoining Lots 6 and 17 is depicted below.2
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In 2007, construction began on the residence that is now located on Lot 17.
This construction included landscaping and a rock wall along the property's southern
boundary and a fence along its eastern boundary.3 At some point, Tyler and Farrah
Borup purchased Lot 17.
1 Clerk's Papers(CP)at 42.
2 The map is taken from the approved boundary line adjustment, an exhibit
before the trial court.
3 The fence on Lot 17 blocked access to Lot 6.
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No. 78962-7-1/3
In 2012, Confidential Capital, LLC acquired title to Lot 6 by way of foreclosure.
In February 2013, the Borups sold Lot 17 to the Khendrys.4 The statutory
warranty deed to the Khendrys referenced the 2006 boundary line adjustment
easement as follows:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS
AS DELINEATED ON SAID PLAT.
Subject To: This conveyance is subject to covenants, conditions,
restrictions and easements, if any, affecting title, which may appear
in the public record, including those shown on any recorded plat or
survey.f51
In May 2013, Confidential Capital sent a letter to the Khendrys, expressing
"shock" that the Khendrys "were not advised of the easement through [their] property"
and inquiring about the Khendrys' desire to purchase Lot 6 to use it as "a green
buffer."6 The letter also stated that if the Khendrys did not or could not acquire Lot 6,
Confidential Capital would put Lot 6 on the market and, in that regard, would need 20
feet of the Khendrys'"fence removed from the easement."7
In September 2017, Confidential Capital sold Lot 6 to LPI. The legal
description in the bargain and sale deed to LPI included the following: "Together with
anon-exclusive easement over and across the south 20 feet of Lot 17 of said Plat."8
4 When the Khendrys purchased Lot 17, the fence along the eastern boundary
was still in place. At some point in 2013, a children's play set that previously existed
in the easement area was removed.
5 CP at 47-48 (boldface omitted).
6 CP at 72.
7 CP at 72.
8 CP at 44.
No. 78962-7-1/4
That same month, an LPI representative spoke to the Khendrys at their home. The
representative revealed that LPI had purchased Lot 6 and intended to build a home
on it.9 The Khendrys denied LPI's request to access Lot 6 through the easement
across Lot 17.19
In March 2018, LPI filed a complaint against the Khendrys to quiet title. LPI
also sought ejectment, requiring the Khendrys to remove any obstructions from the
easement. The Khendrys answered the complaint and alleged counterclaims for
trespass, adverse possession, and to quiet title.
In July 2018, LPI moved for summary judgment, arguing (1) an easement that
has not been used may not be extinguished by adverse possession, and (2) it was
entitled to an award of attorney fees pursuant to RCW 7.28.083(3)." The Khendrys
opposed the motion. The trial court granted LPI's motion but denied its request for
an award of attorney fees.
The Khendrys appeal.
ANALYSIS
We review a motion for summary judgment de novo.12 All facts and
reasonable inferences are considered in the light most favorable to the nonmoving
9 Lot 6 was still undeveloped land at that time.
19 In March and April 2018, the Khendrys reiterated their refusal to grant LPI
access to Lot 6 via Lot 17.
11 CP at 30-37.
12 Hartley v. State, 103 Wn.2d 768, 774,698 P.2d 77(1985).
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No. 78962-7-1/5
party.13 Summary judgment is appropriate if there are no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.14
I. Quiet Title and Ejectment Issues
The Khendrys first argue that LPI "did not properly present the quiet title or
ejectment issues to the trial court for resolution on summary judgment."15 We
disagree.
LPI's summary judgment motion asked "to have title to its easement quieted in
[LPI's] name and have [the Khendrys] ordered to remove all obstructions from the
easement so that LPI may access its property."16 In their response to LPI's motion,
the Khendrys acknowledged the quiet title and ejectment issues and argued
questions of material fact precluded summary judgment. Then, at the summary
judgment hearing, the Khendrys expressly argued, "[T]his is a case that was
commenced by the plaintiff for quiet title and ejectment, and the motion for summary
judgment is a motion for summary judgment on those two claims."17
Based on this record, it is clear that the parties adequately raised, and the trial
court properly considered, the issues of quiet title and ejectment.
13 Id.14 Cole v. Laverty, 112 Wn. App. 180, 184,49 P.3d 924 (2002).
15 Br. of Appellants at 6-8.
16 CP at 30.
17 Report of Proceedings (RP)(Aug. 10, 2018) at 14 (emphasis added).
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No. 78962-7-1/6
II. Easement Validity
The Khendrys next argue that, even if quiet title and ejectment were properly
raised, summary judgment was not warranted because LPI failed to meet its burden
of showing "that the [boundary line adjustment] created a valid easement for ingress,
egress and utilities over the south 20 feet of the Khendrys' property."18 We reject this
argument.
At the summary judgment hearing, the Khendrys conceded that the boundary
line adjustment created a valid easement:
THE COURT: And I don't think the Court has to even go to that
issue because the easement was already granted by a boundary line
readjustment. So even if there is other accesses to Lot 6, I'm not being
asked to determine whether or not the easement is valid. I think that
that's conceded. The easement is a valid easement, or did I miss
something?
[KHENDRYS' COUNSEL]: There was an easement created by
the boundary line adjustment.091
Under RAP 9.12, our review of an order granting summary judgment is limited
to the "evidence and issues called to the attention of the trial court." Thus, "[a]n
argument neither pleaded nor argued to the trial court cannot be raised for the first
time on appeal."2° To allow otherwise "would be to undermine the rule that an
18 Br. of Appellants at 9.
19 RP (Aug. 10, 2018) at 11 (emphasis added). Moreover, in other portions of
the record before the trial court on summary judgment, the Khendrys appear to
acknowledge the existence of the easement that they now contest. See CP at 135,
137.
29 Silverhawk, LLC v. KeyBank Nat. Ass'n, 165 Wn. App. 258, 265, 268 P.3d
958 (2011); see also Cano-Garcia v. King County, 168 Wn. App. 223, 248, 277 P.3d
34(2012)(issue not properly preserved where proponent neither raised it in the
response brief nor argued it at the summary judgment hearing).
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No. 78962-7-1/7
appellate court is to engage in the same inquiry as the trial court in reviewing an
order of summary judgment."21
The Khendrys' current challenge to the validity of the easement was never
"called to the attention of the trial court,"22 and the trial court accepted their
concession that the easement was valid. Therefore, consistent with RAP 9.12, the
Khendrys' challenge to the easement's validity is not properly raised on appeal.
III. Adverse Possession
Lastly, the Khendrys contend that, even if the easement is valid, material
questions of fact exist whether the easement was terminated by adverse possession.
We disagree.
The Khendrys counterclaimed that they and their predecessors in interest
adversely possessed the easement since 2007. To establish adverse possession, a
claimant must prove that possession of the property was "(1) open and notorious,
(2) actual and uninterrupted,(3) exclusive,(4) hostile and under a claim of right,
(5)for a period of 10 years."23 To start the prescriptive period, the Khendrys'
"adverse use of the easement must be clearly hostile to the dominant estate's
interest in order to put the dominant estate owner on notice."24
Wash. Fed'n of State Emps., Council 28, AFL-CIO v. Office of Fin. Mgmt.,
21
121 Wn.2d 152, 163, 849 P.2d 1201 (1993).
22 RAP 9.12.
23 Shelton v. Strickland, 106 Wn. App. 45, 50,21 P.3d 1179 (2001).
24 Cole 112 Wn. App. at 184.
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No. 78962-7-1/8
The Khendrys had the right to use the property subject to the easement in any
way that did not permanently interfere with LPI's reserved easement.25 Here, it is
undisputed that the Khendrys' predecessors-in-interest placed a fence, landscaping,
and rockery in the easement area. But in analyzing whether a particular use was
inconsistent with or permanently interfered with LPI's reserved easement, we
consider several factors. For example, if an easement is not being used, a servient
owner's construction of a fence upon the easement is not "adverse until (1) the need
for the right of way arises,(2) the owner of the dominant estate demands that the
easement be opened, and (3) the owner of the servient estate refuses to do so."26
Even when viewed in the light most favorable to the Khendrys, it was not until
May 2013, when they received and rejected Confidential Capital's request to remove
the fence to allow it access to Lot 6, that a prescription period could have
commenced. Prior to May 2013, the need for use of the easement had not arisen,
none of the past owners of the easement had demanded that the easement be
made available for access, and the Khendrys had not refused to do so. Even
viewed in a light most favorable to the Khendrys, they were using the easement in a
hostile manner for less than 10 years when they commenced their adverse
possession counterclaim. The trial court did not err in dismissing it on summary
judgment.
25 Id. at 185. A servient estate owner may use the land for any purpose "not
inconsistent with its ultimate use for reserved easement purposes during a period of
nonuse." Beebe v. Swerda, 58 Wn. App. 375, 384, 793 P.2d 442(1990).
26 Cole, 112 Wn. App. at 185.
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No. 78962-7-1/9
IV. Attorney Fees on Appeal
LPI requests an award of attorney fees on appeal under RAP 18.9(a) and
RCW 7.28.093(3). We deny in part, and grant in part, LPI's request.
RAP 18.9(a) permits this court to award a party attorney fees when the
opposing party files a frivolous appea1.27 "An appeal is frivolous if, considering the
entire record, the court is convinced that the appeal presents no debatable issues
upon which reasonable minds might differ, and that the appeal is so devoid of merit
that there is no possibility of reversal."28 We conclude that the Khendrys' appeal is
not frivolous because their adverse possession claim presents debatable issues.
Thus, we deny LPI's request under RAP 18.9(a).
"The general rule in Washington is that attorney fees will not be awarded for
costs of litigation unless authorized by contract, statute, or recognized ground of
equity."29 RCW 7.28.083(3) entitles the prevailing party to reasonable attorney fees
and costs in an action asserting title to real property by adverse possession.3°
Here, the Khendrys filed a counterclaim against LPI, asserting title to the
easement under a theory that the easement had "extinguished by adverse
27 Reid v. Dalton, 124 Wn. App. 113, 128, 100 P.3d 349 (2004).
28 Advocates for Responsible Dev. v. W. Wash. Growth Mpmt. Hrps Bd., 170
Wn.2d 577, 580, 245 P.3d 764 (2010)).
29 Durland v. San Juan County, 182 Wn.2d 55, 76, 340 P.3d 191 (2014).
3° "The prevailing party in an action asserting title to real property by adverse
possession may request the court to award costs and reasonable attorneys' fees.
The court may award all or a portion of costs and reasonable attorneys' fees to the
prevailing party if, after considering all the facts, the court determines such an award
is equitable and just." RCW 7.28.083(3).
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No. 78962-7-1/10
possession."31 The parties briefed and argued the adverse possession issue both
below, on summary judgment, and on appeal. Because the adverse possession
counterclaim was asserted as a Theory supporting a claim of title to real property, we
conclude that RCW 7.28.083(3) supports an award of reasonable attorney fees to LPI
on appeal. However, we limit the award to fees reasonably incurred only on the
adverse possession issue.
The Khendrys rely on McColl v. Anderson,32 to argue that attorney fees under
RCW 7.28.083(3) do not apply "here because this is not an action asserting title to
real property by adverse possession."33 Their reliance on McColl is misplaced. In
McColl, the plaintiff asserted a "prescriptive easement" to cross the defendant's
property and "requested a declaration establishing . . . prescriptive easements."34
The defendant prevailed on summary judgment and was awarded attorney fees
under RCW 7.28.083(3).35 In reversing and vacating the attorney fees award on
appeal, the McColl court stated: "Unlike adverse possession, a prescriptive easement
does not quiet title to land[,]" and "[b]ecause a prescriptive easement claim does not
actually assert title to property, RCW 7.28.083(3) does not apply to [plaintiff's]
31 CP at 66-67. Accordingly, the Khendrys' adverse possession counterclaim
was a separate cause of action from LPI's. See CR 13(a)(compulsory
counterclaims); CR 13(b)(permissive counterclaims); CR 54(b)("When more than
one claim for relief is presented . . . whether as a claim [or] counterclaim, . . . the
court may direct the entry of a final judgment as to one or more but fewer than all of
the claims[.]")
32 6 Wn. App. 2d 88, 92-93, 429 P.3d 1113(2018)(Div. II).
33 Reply Br. of Appellants at 6(emphasis omitted).
34 McColl, 6 Wn. App.2d at 90.
35 Id.10
No. 78962-7-1/11
prescriptive easement lawsuit."36 Here, the record clearly establishes that the
Khendrys' counterclaim for adverse possession was in the nature of a claim of
absolute title to the disputed property and not a claim for some lesser interest.
In conclusion, we affirm the trial court's summary judgment order. We grant
LPI its reasonable attorney fees on appeal concerning only the adverse possession
issue, subject to compliance with RAP 18.1.
WE CONCUR:
1/11 z41L1I Aca"
36 Id. at 92-93; but see Workman v. Klinkenberq, 6 Wn. App. 2d 291, 305-06,
430 P.3d 716 (2018)(Div. I)(concluding because adverse possession and
prescriptive easement doctrines "'are often treated as equivalent[s]' and the elements
required to establish [those doctrines] are the same,[RCW 7.28.083(3)] allows
recovery for fees incurred on prescriptive easement claims.")(quoting Kunkel v.
Fisher, 106 Wn. App. 599, 602-03, 23 P.3d 1128 (2001)).
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