David & Joan Cottingham, Apps/cross-resps. v. Ronald & Kaye Morgan, Resps/cross-apps ( 2013 )


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  •                                                     ,;0U?.7 OF APPEALS Ghj i
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    2013 OCT 1U ml 9= 15
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION ONE
    DAVID C. COTTINGHAM and JOAN S.                  No. 68202-4-1
    COTTINGHAM,
    (Consolidated with No. 68402-7-1)
    Appellants/Cross Respondents,
    v.                            UNPUBLISHED OPINION
    RONALD J. MORGAN and KAYE L.
    MORGAN, Husband and Wife,
    Respondents/Cross Appellants.              FILED: October 14, 2013
    Schindler, J. — David and Joan Cottingham (Cottingham) own waterfront
    property on Lake Whatcom. Ronald and Kaye Morgan (Morgan) own an adjacent
    waterfront lot. Cottingham filed a lawsuit against Morgan claiming ownership of a
    portion of Morgan's property by adverse possession. Cottingham also asserted claims
    for nuisance, outrage, conversion, and trespass. Morgan filed a counterclaim to quiet
    title to the disputed area. The court granted Cottingham's motion for partial summary
    judgment, concluding Cottingham established adverse possession of approximately 800
    square feet of Morgan's property. But at the conclusion of the trial, the court found that
    Cottingham established adverse possession as to only 292.3 square feet of Morgan's
    property. The court quieted title to the property in Cottingham but allowed Morgan to
    purchase the property at fair market value. The court also ordered Morgan pay treble
    No. 68202-4-1 (Consol. with No. 68402-7-l)/2
    damages under the timber trespass statute, and dismissed Cottingham's claims for
    nuisance and outrage.
    On appeal, Cottingham contends the court erred in revising the decision on
    partial summary judgment, allowing Morgan to purchase the property, and dismissing
    the nuisance and outrage claims. Morgan cross appeals the order granting partial
    summary judgment, the determination that he committed conversion, and the award of
    treble damages. We affirm the trial court in all respects but remand to address an
    inconsistent conclusion of law in the "Supplemental Findings of Fact and Conclusions of
    Law."
    FACTS
    David and Joan Cottingham (Cottingham) own two waterfront lots on Lake
    Whatcom, Lot 9 and Lot 10 of the "Nixon Beach" tracts. Lot 9 is directly north of Lot 10.
    The lots are narrow and rectangular. The western edge of the lots borders Lake
    Whatcom. Cottingham's house is located on Lot 9. Lot 11 shares a boundary with Lot
    10. Lot 11 is also a narrow rectangular tract of land with the western edge bordering
    Lake Whatcom. A 10-foot-wide private road runs across the eastern edge of the Nixon
    Beach tracts. The road is held in undivided ownership interests for all of the owners of
    14 Nixon Beach lots.1
    In 2004, Ronald and Kaye Morgan (Morgan) considered purchasing Lot 11. In
    2005, Morgan retained Larry Steele to conduct a survey. In January 2006, Morgan
    purchased Lot 11. A row of laurels was located along the boundary between Lot 10 and
    Lot 11.
    1 The deed to Lot 11 states that title includes an "undivided 14th interest in the road shown on the
    plat."
    No. 68202-4-1 (Consol. with No. 68402-7-l)/3
    In August 2006, Morgan began construction of the house, a fence, and a
    driveway. Morgan installed the fence along the property line indentified in the Steele
    survey. In September 2007, Morgan removed eight of the laurels to construct the
    driveway. In fall 2008, ground water from the septic tank was inadvertently pumped
    onto the lot south of Lot 11. Morgan installed a new drain field in the spring.
    In June 2009, Cottingham filed an action to quiet title to a portion of Lot 11
    asserting ownership by adverse possession. Cottingham also alleged claims for
    trespass, conversion, nuisance, and outrage. Morgan filed a counterclaim to quiet title
    to the disputed portion of his property.
    Cottingham filed a motion for partial summary judgment on adverse possession.
    Cottingham submitted a declaration stating that beginning in 1989, he mowed and
    cleared blackberry in the disputed area. Cottingham also stated that between 1989 and
    1994, he planted rhododendrons, the laurel hedge, a garden, a locust tree, and a
    hydrangea on or near the disputed area, and installed a compost structure and a swing
    set in the disputed area. Cottingham said that he planted another row of laurels on the
    eastern end of the boundary in 1995.
    Cottingham also submitted the declaration of Steven Otten. Often maintained
    Lot 11 for the previous owner, Gladys Cook, until she sold the property in 1998. Otten
    stated that the disputed area "was being regularly mowed and maintained and used by
    Cottinghams."
    In opposition, Morgan argued that when he visited the property in 2004 and
    2005, he never saw "any evidence of any occupation of Lot 11 by plaintiffs or anyone
    else." Morgan submitted the declaration of his surveyor Steele. Steele stated that
    No. 68202-4-1 (Consol. with No. 68402-7-l)/4
    when he visited the property between January 2005 and January 2007, he did not "see
    evidence of any established boundary line, or witness or see evidence of any adverse
    occupation." Steele also stated that there was "an uneven row of bushes some of which
    were north of Lot 11, some of which were on the surveyed property line, and some of
    which were on Lot 11."
    The court granted the motion for partial summary judgment. The court concluded
    the unrebutted evidence established that Cottingham adversely possessed
    approximately 800 square feet of the property located near the boundary line near Lot
    10 and Lot 11 beginning in 1989. The order states, in pertinent part: "Defense has
    raised disputed legal conclusions, but no relevant issues of material fact. The adverse
    possession lasted well in excess of the statutory requirement."
    Several witnesses testified during the four-day trial on the remaining claims,
    including Cottingham, Morgan, septic installer Thomas Pulver, real estate appraiser Don
    Gustafson, and surveyors Bruce Ayers and Steele.2 The court also conducted a site
    visit.
    At the conclusion of the trial, the court revised its ruling on partial summary
    judgment "because at trial it became clear" that many of the laurels were "clearly on Lot
    10 and not Lot 11." The court ruled that Cottingham had established adverse
    possession as to only 292.3 square feet and not 800 square feet of the disputed area.
    The court also ruled that Morgan was entitled to purchase the 292.3 square feet from
    Cottingham and that title "in the disputed property, and all of Lot 11 should be quieted in
    Morgan upon payment of $8,216.55 to Cottingham." Finding of fact 23 states, in
    2The other witnesses were Whatcom County Environmental Health Specialist Edward Halasz
    and septic designer Sharon Kettells.
    4
    No. 68202-4-1 (Consol. with No. 68402-7-l)/5
    pertinent part:
    Although Cottingham acquired a portion of Lot 11 by adverse possession,
    that portion acquired:
    A.      provides little value to the Cottinghams;
    B.    is of great value to the Morgans, providing for minimum set
    back requirements;
    C.    any remedy requested by Cottingham would result in
    substantial permanent improvements being removed on Lot 11 and/or
    would likely create safety issues related to access to all of the Morgan
    residence and property; and
    D.    any remedy requested by Cottingham would likely result in
    further disputes and conflict as opposed to ending this matter.
    E.     not to allow the Morgans to purchase the property from the
    Cottinghams would place an unreasonable restriction on the use of the
    Morgan's property, without giving much benefit to the Cottinghams.
    F.     not to allow the purchase would significantly affect
    marketability and usability of the Morgans' property.
    The Court should exercise its equitable powers and require that the
    Morgans purchase that portion of the disputed area adversely possessed
    at fair market value.
    The court also ruled that Morgan committed the tort of conversion by removing
    several laurels that were clearly not on his property and ordered him to pay treble
    damages under the timber trespass statute, RCW 64.12.030. The findings of fact state,
    in pertinent part:
    27.    The laurel bushes removed by Morgans were clearly not
    theirs, regardless of location or condition. Morgan committed the tort of
    conversion in taking them.
    28.    The fair market value to replace the laurels is $4342.98.
    29.    The Morgans knew of the existence of a bona fide property
    line dispute but nonetheless intentionally removed the eight laurels in
    violation of R.C.W. 64.12.030. Therefore, damages should be trebled.
    The court rejected Cottingham's nuisance and outrage claims. The court found
    that "[t]he Morgans have not been involved in a public nuisance as claimed by
    Cottinghams. Any spill from the old septic system or delay in designing a new system
    was de minimus and occurred in good faith."
    No. 68202-4-1 (Consol. with No. 68402-7-l)/6
    The court entered a judgment against Morgan in the amount of $21,245.49:
    1. For timber trespass waste under RCW 64.12.030, damages for
    which, at $4,342.98, are trebled for $13,028.94.
    2. For purchase of the "disputed area" $8216.55.
    Cottingham filed a motion to reconsider, vacate the judgment, amend the findings
    of fact and conclusions of law, or grant a new trial. The court denied Cottingham's
    motion and entered Supplemental Findings of Fact and Conclusions of Law proposed
    by Morgan.3
    ANALYSIS
    Cottingham contends the court erred in revising the decision on partial summary
    judgment, ordering him to sell the property he owned by adverse possession, and
    dismissing the nuisance and outrage claims. Morgan cross appeals the finding that
    Cottingham established adverse possession of a portion of Lot 11, the finding that he
    committed conversion, and the decision to award Cottingham treble damages under the
    timber trespass statute.
    Adverse Possession
    Cottingham claims the court erred in revising the decision on partial summary
    judgment by finding that he established adverse possession as to only 292.3 square
    feet of Lot 11. We disagree. Because the order on partial summary judgment was not
    3Supplemental finding offact 23 states:
    The portion of Lot 11 claimed by Cottingham by adverse possession:
    A.       provides little value to the Cottinghams;
    B.       is of great value to the Morgans providing for minimum set back
    requirements for the residence, septic system and driveway;
    C.       Morgan at no time acted in bad faith norwillfully in violation of any claim
    [o]f title to Lot 11 of Cottingham;
    D.     any remedy requested by Cottingham would result in substantial
    permanent improvements being removed on Lot 11 and/or would likely create safety
    issues related to access to all of the Morgan residence and property; and
    No. 68202-4-1 (Consol. with No. 68402-7-l)/7
    final, the court had the authority to modify the order at any time prior to entry of the final
    judgment. CR 54(b); Washburn v. Beatt Equip. Co.. 
    120 Wash. 2d 246
    , 300, 
    840 P.2d 860
    (1992).
    Cottingham also argues substantial evidence does not support the finding that
    the disputed area was only 292.3 square feet and not 800 square feet.4
    To establish ownership by adverse possession, Cottingham had the burden of
    establishing that possession of the disputed area was (1) exclusive, (2) actual and
    uninterrupted, (3) open and notorious, and (4) hostile for the 10-year statutory period.
    RCW 4.16.020(1); Chaplin v. Sanders. 
    100 Wash. 2d 853
    , 857, 
    676 P.2d 431
    (1984); JJT
    Ravonier. Inc. v. Bell, 
    112 Wash. 2d 754
    , 757, 
    774 P.2d 6
    (1989). The party claiming
    adverse possession has the burden of establishing each element. Miller v. Anderson,
    
    91 Wash. App. 822
    , 828, 
    964 P.2d 365
    (1998). Whether a person has gained title by
    adverse possession is a mixed question of law and fact. 
    Miller, 91 Wash. App. at 828
    .
    Whether the facts establish adverse possession is a question of law that we review de
    novo. Bryant v. Palmer Coking Coal Co.. 
    86 Wash. App. 204
    , 210, 
    936 P.2d 1163
    (1997).
    We review a trial court's findings of fact to determine whether substantial
    evidence supports the findings of fact and, in turn, whether the findings support the
    conclusions of law. Scott v. Trans-Svs.. Inc.. 
    148 Wash. 2d 701
    , 707-08, 
    64 P.3d 1
    (2003).
    Substantial evidence is the quantum of evidence sufficient to persuade a rational, fair-
    minded person that the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County,
    
    141 Wash. 2d 169
    , 176, 
    4 P.3d 123
    (2000). The court views the evidence and all
    4Cottingham waived his right to challenge findings offact 4, 5, 7, 8, 10, 14, 15, 18; conclusion of
    law 9; and amended conclusions of law 7 and 11; and assignments of error regarding the lis pendens, the
    supersedeas bond, and the motion to strike portions of declarations submitted in support of summary
    judgment. None of these assignments of error are addressed in the argument section of the brief.
    Cowiche Canyon Conservancy v. Boslev. 
    118 Wash. 2d 801
    , 809, 
    828 P.2d 549
    (1992).
    No. 68202-4-1 (Consol. with No. 68402-7-l)/8
    reasonable inferences in the light most favorable to the prevailing party. Korst v.
    McMahon, 
    136 Wash. App. 202
    , 206, 
    148 P.3d 1081
    (2006). We defer to the trial court's
    determination regarding conflicting evidence and credibility of the witnesses.
    Weyerhaeuser v. Tacoma-Pierce County Health Dep't, 
    123 Wash. App. 59
    , 65, 
    96 P.3d 460
    (2004). "The party challenging a finding of fact bears the burden of showing that it
    is not supported by the record." Panorama Vill. Homeowners Ass'n v. Golden Rule
    Roofing, Inc., 
    102 Wash. App. 422
    , 425, 
    10 P.3d 417
    (2000). Unchallenged findings of
    fact are verities on appeal. Moreman v. Butcher. 
    126 Wash. 2d 36
    , 40, 
    891 P.2d 725
    (1995).
    Substantial evidence supports the finding that Cottingham adversely possessed
    only 292.3 square feet of Lot 11 because "many laurels were planted on a portion of the
    joint property line and a substantial portion of them were clearly on Lot 10 and not Lot
    11." The record also supports the finding that only the laurels "on the east part of the
    common line were planted ... on Lot 11, in the disputed area." The Steele survey
    depicts the placement of the laurels in 2005. Steele testified that the laurel hedge was
    located on Lot 11 along the eastern edge of the boundary with Lot 10. The survey also
    shows the laurel hedge continuing west along the boundary toward the lake and then
    crossing the boundary line onto Lot 10.
    Equitable Sale
    Cottingham claims the court abused its discretion by allowing Morgan to
    purchase the 292.3 square feet. Quiet title actions are equitable in nature. Durrah v.
    Wright, 
    115 Wash. App. 634
    , 639, 
    63 P.3d 184
    (2003). A trial court sitting in equity has
    broad discretion to fashion a remedy "to do substantial justice." Esmieu v. Hsieh, 92
    8
    No. 68202-4-1 (Consol. with No. 68402-7-l)/9
    Wn.2d 530, 535, 
    598 P.2d 1369
    (1979); Haueter v. Rancich. 
    39 Wash. App. 328
    , 331, 693
    P.2d 168(1984).
    We review the authority of a court to fashion an equitable remedy for abuse of
    discretion. Sac Downtown Ltd. P'ship v. Kahn, 
    123 Wash. 2d 197
    , 204, 
    867 P.2d 605
    (1994). The trial court's equity power is "flexible and fact-specific." Proctor v.
    Huntington, 
    169 Wash. 2d 491
    , 503, 
    238 P.3d 1117
    (2010).
    The factors set forth in Proctor support the trial court's decision. In Proctor, the
    Huntingtons mistakenly built their home, well, and garage on a portion of Proctor's land.
    
    Proctor, 169 Wash. 2d at 494
    . Proctor sued the Huntingtons for ejectment. 
    Proctor, 169 Wash. 2d at 495
    . The trial court ordered Proctor to sell the land to the Huntingtons.
    
    Proctor. 169 Wash. 2d at 495
    . On appeal, the Washington Supreme Court identified a
    number of factors the trial court should consider in fashioning the equitable relief, and
    affirmed. 
    Proctor, 169 Wash. 2d at 504
    . The Court identified the following factors:
    (1) The encroacher did not simply take a calculated risk, act in bad faith, or
    negligently, willfully or indifferently locate the encroaching structure; (2) the
    damage to the landowner was slight and the benefit of removal 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.
    
    Proctor. 169 Wash. 2d at 5005
    (quoting Arnold v. Melani. 
    75 Wash. 2d 143
    , 152, 
    437 P.2d 908
    (1968)). The Court held that the trial court did not abuse is discretion by refusing "to
    require the Huntingtons to remove their entire house, garage, and well—at an estimated
    cost of over $300,000—because of both parties' good-faith surveying mistake." Proctor,
    169Wn.2dat503.
    5(Internal quotation marks omitted.)
    No. 68202-4-1 (Consol. with No. 68402-7-l)/10
    Here, the court expressly found that Morgan "at no time acted in bad faith nor
    willfully in violation of any claim [of] title to Lot 11 of Cottingham," and the damage to
    Cottingham was slight and the benefit of removal small. The court found that the
    portion of Lot 11 that Cottingham acquired by adverse possession was of little value to
    Cottingham. The court also found that the sale of the disputed area did not limit
    Cottingham's use of the property, and Cottingham could still build a garage and access
    Lake Whatcom.
    In contrast, the court found that the disputed area was very valuable to Morgan
    because the land was necessary to meet the "minimum set back requirements for the
    residence, septic system and driveway." The record shows there was less than 1.5 feet
    between Morgan's garage and the boundary. Real estate appraiser Don Gustafson
    testified that a setback of less than five feet affects marketability. The court also found
    that if Cottingham had title to the disputed area, it "would likely create safety issues
    related to access to all of the Morgan residence and property." We hold the court did
    not abuse its discretion by ordering the equitable sale.
    Nuisance
    Cottingham claims the court erred in dismissing his public nuisance claim. A
    "public nuisance" is a nuisance "which affects equally the rights of an entire community
    or neighborhood." RCW 7.48.130. A nuisance action may be brought by "any person
    whose property is . . . injuriously affected or whose personal enjoyment is lessened by
    the nuisance." RCW 7.48.020. Nuisance is a substantial and unreasonable
    interference with the use and enjoyment of land. Grundy v. Thurston County, 
    155 Wash. 2d 1
    , 6-7, 
    117 P.3d 1089
    (2005).
    10
    No. 68202-4-1 (Consol. with No. 68402-7-l)/11
    Cottingham challenges the finding that Morgan "believ[ed] that he was merely
    pumping odorless ground water" from a hole on his property, that "[a]ny spill from the
    old septic system or delay in designing a new system was de minimus and occurred in
    good faith," and that Morgan believed he was pumping "[gjroundwater [and] rainwater"
    and "couldn't smell anything."
    Substantial evidence supports the findings. Septic installer Thomas Pulver
    testified that when he excavated the old drain field, there was no pooling of effluent or
    any evidence that anything spilled onto the Cottingham's property. Further, the
    unchallenged finding states that "[t]here was no substantial evidence that effluent was
    pumped from the tank or, if it were, that it caused any damage." Unchallenged finding
    of fact 24 also states that the delay in fixing the septic system was due to wet winter
    weather: "During the wet winter months it can be problematic with the water table in the
    area to rebuild a septic field .... The delay was in the hands of professionals and not
    unreasonable under the circumstances."6
    Outrage
    Cottingham also asserts the trial court erred in dismissing his outrage claim. To
    establish outrage, a plaintiff must show "behavior 'so outrageous in character, and so
    extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
    as atrocious, and utterly intolerable in a civilized community.'" Kloepfel v. Bokor, 149
    6(Emphasis added.) Cottingham also argues Leo Day is not a certified septic installer and there
    is no evidence Whatcom County required the rocks installed as barriers around the drain field. The
    record does not support Cottingham's argument. The record shows that Leo Day worked for Ultra Tank
    Services. Thomas Pulver, the owner of Ultra Tank, is a licensed Whatcom County septic installer. A
    Whatcom County Health Department on-site sewage construction permit indicates, "Traffic control
    barriers [are] required along perimeter of driveway adjacent to main and reserve drainfield."
    11
    No. 68202-4-1 (Consol. with No. 68402-7-1)/*!2
    Wn.2d 192, 196, 
    66 P.3d 630
    (2003)7 (quoting Grimsby v. Samson, 
    85 Wash. 2d 52
    , 59,
    
    530 P.2d 291
    (1975)). The unchallenged finding that "[n]o conduct of Morgans could be
    regarded as atrocious or utterly intolerable in a civilized community" supports dismissal
    of the outrage claim.
    Cross Appeal
    Morgan contends the court erred in concluding Cottingham established adverse
    possession.
    When reviewing a grant of summary judgment, we undertake the same inquiry as
    the trial court. Wilson v. Steinbach. 
    98 Wash. 2d 434
    , 437, 
    656 P.2d 1030
    (1982). Under
    CR 56, the moving party bears the initial burden of showing the absence of genuine
    material issues of fact and that the moving party is entitled to judgment as a matter of
    law. Young v. Key Pharm.. Inc.. 
    112 Wash. 2d 216
    . 225, 
    770 P.2d 182
    (1989). If the
    moving party meets its initial burden, the nonmoving party must set forth specific facts
    to rebut showing that a genuine issue as to a material fact exists. Allard v. Bd. of
    Regents of Univ. of Wash., 
    25 Wash. App. 243
    , 247, 
    606 P.2d 280
    (1980).
    Here, the unrebutted evidence established Cottingham adversely possessed the
    disputed area from 1995 to 2005. The court did not err in concluding Cottingham
    adversely possessed the disputed area and granting the motion for partial summary
    judgment.
    Morgan also challenges the finding that he committed the tort of conversion by
    removing eight laurel bushes. "Conversion" is " 'the act of willfully interfering with any
    chattel, without lawful justification, whereby any person entitled thereto is deprived of
    the possession of it.'" Brown v. Brown. 
    157 Wash. App. 803
    , 817-18, 
    239 P.3d 602
    7(Emphasis omitted.)
    12
    No. 68202-4-1 (Consol. with No. 68402-7-l)/13
    (2010) (quoting Consulting Overseas Mgmt, Ltd. v. Shtikel. 
    105 Wash. App. 80
    , 83, 
    18 P.3d 1144
    (2001)).
    Because substantial evidence supports the finding that Morgan "knew of the
    existence of a bona fide property line dispute but nonetheless intentionally removed the
    eight laurels in violation of R.C.W. 64.12.030," the trial court did not err in awarding
    treble damages.
    In October 2007, Morgan wrote Cottingham a letter with a subject line,
    "Morgan/Cottingham Lot Line," informing Cottingham that he had removed several
    laurels.
    [W]e have removed the marked portions of the hedge needed to provide
    adequate access to our house. Under any possible compromise the
    marked laurels could not stay.
    I am still willing to discuss a transfer of some property at the back of
    our lot in return for some property at the front of your lot if you need this to
    develop your separate lot. At a minimum, however, we would need a
    permanent easement for ingress and egress over the back part of the
    property to get reasonable access to our home.
    The unchallenged findings of fact also state that "[w]hen the Morgans purchased
    their property they were aware of the laurels and their location in close proximity to the
    survey line." There is also no dispute that Cottingham planted the laurels as a hedge
    between Lots 10 and 11.8
    Morgan claims the trial court erred by trebling the damages for the cost of the
    laurels because the timber trespass statute did not apply. We disagree. The timber
    trespass statute states, in pertinent 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
    8The cases Morgan relies on, Lane v. W.J. Currv &Sons. 
    92 S.W.3d 355
    , 364 (Tenn. 2002), and
    Gostina v. Ryland, 
    116 Wash. 228
    , 234-35, 
    199 P. 298
    (1921), are inapposite because they address
    nuisance, not conversion.
    13
    No. 68202-4-1 (Consol. with No. 68402-7-l)/14
    lawful authority, in an action by the person, city, or town against the
    person committing the trespasses or any of them, any judgment for the
    plaintiff shall be for treble the amount of damages claimed or assessed.
    RCW 64.12.030.9 If a trespasser has knowledge of a bona fide boundary dispute, treble
    damages are appropriate. RCW 64.12.030; Maierv. Giske, 
    154 Wash. App. 6
    , 21, 223
    P.3d 1265(2010).
    Supplemental Findings of Fact and Conclusions of Law
    We affirm the trial court in all respects but remand to address what appears to be
    an inadvertent error in the Supplemental Findings of Fact and Conclusions of Law. In
    the Supplemental Findings of Fact and Conclusions of Law, the court clearly crossed
    out the proposed finding that "Cottinghams have not established that they adversely
    possessed any portion of Lot 11 ."10 However, the court did not cross out the
    corresponding conclusion of law that states, "The Cottinghams have not established all
    elements of adverse possession by clear, cogent and convincing evidence as to any
    portion of Lot 11 ."11 Accordingly, we remand to address the discrepancy.
    (Emphasis added.)
    10 (Emphasis added.)
    11 (Emphasis added.) This amended conclusion of law is also contrary to the finding that
    Cottingham established adverse possession to 292.3 square feet of Lot 11, the order allowing Morgan to
    pay Cottingham $8,216.55 to purchase a portion of Lot 11, and entry of the judgment. On appeal,
    Morgan admits there is "some confusion in the record" about the court's ruling on adverse possession.
    14
    No. 68202-4-1 (Consol. with No. 68402-7-l)/15
    We affirm in all respects but remand to address the inconsistent conclusion of
    law in the Supplemental Findings of Fact and Conclusions of Law.12
    >Wti?A
    WE CONCUR:
    £~j &. y                                              G?w«-^
    12 Cottingham is not entitled to attorney fees on appeal based on the statutes he cites.
    15