Jesus Galvan, et ux v. Miguel Galvan, et ux ( 2018 )

FILED
JUNE 7, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JESUS GALVAN and JOSEFINA )
GALVAN, husband and wife, ) No. 34825-3-III
)
Respondents, )
)
v. )
) UNPUBLISHED OPINION
MIGUEL GALVAN and MARIA T. )
GALVAN, husband and wife, )
)
Appellants. )
KORSMO, J. — Appellants Miguel and Maria Galvan appeal from a judgment
entered after a bench trial that directed the appellants to execute a deed giving an
undivided 50 percent interest in 21 acres of Chelan County property the couple had
purchased to respondents Jesus and Josephina Galvan.1 Because the record prevents this
court from considering appellants’ claims, we affirm.
FACTS
The two couples orally agreed in 1989 to jointly purchase the property from Erma
Anderson for the sum of $14,862.24. Respondents would give their share of the
1
Because the parties, who are siblings, share the same surname, we will primarily
reference them by the designations of “appellants” and “respondents” in order to avoid
confusion.
No. 34825-3-III
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payment, typically in cash, but sometimes by check, to appellants, who would then make
the payment to Ms. Anderson. This arrangement continued until March 1, 1994, when
appellants declined to accept a $100.00 payment from respondents. The following year,
Ms. Anderson deeded the property to appellants.
The appellants lived on the property. In 2005, respondents learned that their
names were not on the deed and that appellants refused to add their names or return the
payments they had contributed. Respondents then filed a lien against the land. In 2009,
respondents filed this action to quiet title and receive a deed recognizing their half
interest in the property. The complaint was amended to add claims of breach of contract,
unjust enrichment, and conversion. Respondents filed an answer, but did not raise any
affirmative defenses.
The case ultimately proceeded to bench trial. Although respondents were
represented by counsel, appellants were not. Both couples testified in their own behalf,
and three other members of the Galvan family testified for the respondents. The trial
court found that the couples had entered into an oral agreement in 1989 and that
respondents had made substantial payments to appellants. The court also determined that
while appellants had paid the property taxes over the years, they had not paid rent to the
respondents.
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Based on those findings, the court ordered that the parties would each have equal
50 percent ownership, imposed a constructive trust, and directed that a deed reflecting the
50 percent interests should be executed. Miguel and Maria Galvan, now represented by
counsel, then timely appealed to this court. A panel considered the matter without
hearing oral argument.
ANALYSIS
Appellants present two issues for this court. First, they contend that the trial
court’s factual findings are not supported by the record. Second, they contend that this
action was barred by the statute of limitations. Unfortunately for them, these claims are
waived.
Factual Findings
Although they challenge the sufficiency of the evidence to support the trial court’s
findings, appellants have not presented a verbatim report of the trial proceedings. We,
thus, have no basis for considering this claim.
Normally, this court reviews the trial court’s decision following a bench trial to
determine whether the findings are supported by substantial evidence and whether those
findings support the conclusions of law. Dorsey v. King County, 51 Wash. App. 664, 668-
669, 754 P.2d 1255 (1988). Substantial evidence exists if the evidence is sufficient to
persuade a fair-minded rational person of the truth of the evidence. In re Estate of Jones,
152 Wash. 2d 1, 8, 93 P.3d 147 (2004). Appellate courts do not find facts and cannot
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substitute their view of the facts in the record for those of the trial judge. Thorndike v.
Hesperian Orchards, Inc., 54 Wash. 2d 570, 575, 343 P.2d 183 (1959). Accordingly, the
presence of conflicting evidence does not prevent evidence from being “substantial.”
E.g., Merriman v. Cokeley, 168 Wash. 2d 627, 631, 230 P.3d 162 (2010).
Unfortunately, the record of this appeal does not reflect the evidence the trial court
considered. It is the burden of the party presenting an issue to ensure that the record is
adequate for review. State v. Rienks, 46 Wash. App. 537, 544-545, 731 P.2d 1116 (1987).
Here that failure falls on the appellants’ shoulders. We cannot review the adequacy of
the evidence to support the findings since the record has not been supplied to us.
Accordingly, the factual findings are verities in this appeal. The two brothers and
their spouses did agree to jointly purchase the property and the respondents did make
their payments to the appellants. On this record, we have no basis for concluding
otherwise. This argument is waived.
Statute of Limitations
Appellants also contend that the respondents brought their argument in an
untimely manner, contending that the respondents were on notice in 1994 due to the
occasion when appellants refused to accept payment from them. This argument was not
presented to the trial court and also is one we lack an appropriate record to consider in
this appeal.
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A statute of limitations is designed to protect individuals and courts from stale
claims. Burns v. McClinton, 135 Wash. App. 285, 293, 143 P.3d 630 (2006). Typically, a
statute of limitations is an affirmative defense that must be argued in the trial court in
order to preserve the issue for appeal. CR 8(c); RAP 2.5(a); Harting v. Barton, 101 Wn.
App. 954, 962, 6 P.3d 91 (2000). The statute of limitations, as an affirmative defense, is
a matter on which the defendant bears the burden of proof. Haslund v. City of Seattle, 86
Wash. 2d 607, 620-621, 547 P.2d 1221 (1976). Whether a case was filed within the statute
of limitations period is normally a question of law to be determined by a judge. Rivas v.
Overlake Hosp. Med. Ctr., 164 Wash. 2d 261, 267, 189 P.3d 753 (2008). The statute of
limitations on a constructive trust begins to run when the beneficiary of the trust
discovers, or should have discovered, the other party’s breach. Arneman v. Arneman, 43
Wash. 2d 787, 797, 264 P.2d 256 (1953).
Here, the lack of a record again is critical. Nothing in the record we do have in
this appeal suggests that the statute of limitations claim was presented to the trial court.
It was not included in the answer to the complaint. There is no indication that the parties
developed the necessary facts in the record that would have allowed the trial judge to
assess the contention. Whether appellants would have prevailed on this claim is one we
cannot know since they did not ask the trial court to rule on the issue at a time in which
both parties could have marshalled their evidence and make appropriate arguments.
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Having failed to raise this issue in the trial court, appellants have not preserved the
issue for our consideration. Harting, 101 Wash. App. at 962.
The judgment is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
_J;
Fear�t J
Siddoway, J.
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