Lillian Lam And Kevin Tible, Apps. v. Sergio A. Bravo, Xuan Zhang, Res. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LILLIAN LAM and KEVIN TIBLE, )
) No. 79018-8-I
Appellants, )
) DIVISION ONE
v.
)
SERGIO BRAVO and XUAN ZHANG, )
Respondents, )
and
ERIKA CHIHUAHUA, ) UNPUBLISHED OPINION
Defendant. ) FILED: January 13, 2020
SMITH, J. —This appeal involves a dispute regarding a landlocked property and
its easement. Appellants, Lillian Lam and Kevin Tible (collectively the Lams), co-own
their home, which they can access only by ingress and egress over Sergio Bravo and
Xuan Zhang’s (collectively the Bravos) property (Bravo Property). The Lams brought
suit against the Bravos and their tenant, Erika Chihuahua, for, among other things,
obstruction of easement, nuisance, and preliminary and permanent injunction. The
Lams alleged that the prior owner of the Bravo Property granted an easement to the
exclusion of use for the benefit of the Bravo Property. The Lams additionally claimed
adverse possession rights to parts of the Bravos Property. The Bravos filed a motion
for partial summary judgment asserting that the easement was not exclusive and the
Lams had not satisfied the elements of adverse possession. The King County Superior
Court granted the motion. The court also granted the Bravos’ motion for attorney fees
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and sanctions.
The Lams appeal. They argue, among other things, that because they did not
allege an adverse possession claim in their complaint, the trial court erred by granting
summary judgment as to such a claim. But because the Lams asserted adverse
possession as an affirmative defense to the Bravos’ counterclaims and in a motion for a
temporary restraining order (TRO), the trial court did not err by entering summary
judgment regarding that claim. Additionally, because the easement is ambiguous and
the grantor’s conduct and the circumstances at the time of conveyance support a
conclusion that the easement was not meant to exclude the Bravo Property’s use, the
Lams also failed to establish a genuine issue of material fact as to whether the
easement excludes use by the Bravo Property. Finally, the trial court did not err by
awarding fees and sanctions because the Lams brought claims that were not grounded
in fact or supported by law. Therefore, we affirm.
FACTS
In 2016, the Lams purchased their home at 5144 South Augusta Street in Seattle
(Lam Property). Earlier that year, the Bravos had purchased the Bravo Property, a
duplex at 5146 South Augusta Street. Prior to the Bravos, Viengkham Phonbandit
owned the Bravo Property, and his brother and his sister-in-law, Nate and Na
Phonbandit, lived in the lower unit of the duplex until 2014. Robert Arnaud and Lan
Tran bought the Lam Property in 2006, which was and remained undeveloped until the
Lams purchased it in 2016.
In 2007, Viengkham granted a written easement for ingress, egress, and utilities,
which was subsequently recorded in King County. The 2007 easement declares:
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FOR A VALUABLE CONSIDERATION, . the Grantor(s)...
. .
hereby grant and convey a(an) [exclusive/non-exclusive] easement
• (attached and incorporated as Exhibit “A”) to Grantee(s), its successors in
interest and assigns, for the purpose of conveying an INGRESS /
EGRESS & UTILITIES Easement.
(Emphasis added.) (First and second alterations in original.) In other words, although
the 2007 easement was printed on a form permitting the parties to select whether the
easement was exclusive or nonexclusive, neither option was selected. Under the
easement, the Lam Property is the dominant estate, and the Bravo Property is the
servient estate. The easement cites to exhibit B as the “legal description,” but exhibit B
does not indicate whether the easement is exclusive or nonexclusive. However,
attached to the 2007 easement but not cited in the easement itself, is an attachment
designated as exhibit C, which states that the easement is ‘an exclusive easement for
ingress, egress, and utilities over, under, and across the west 10.00 feet of the.
land.” (Emphasis added.)
In a later declaration, the drafter of the 2007 easement, Tracy Timm, explained
that he “drafted the exclusive easement for ingress, egress, and utilities,” which “was
intended to be exclusive.” But Timm explained, “[M]y understanding [is] that the owner
is not denied the use of his land just because it is encumbered by an easement.”
Additionally, when deposed, Nate and Na testified that during their 12-year residence at
the Bravo Property, Viengkham consistently traversed the easement with his vehicle,
parking on the west side of the property, near the easement. Nate further declared that
no one used the easement to access the Lam Property between 2006 and 2014.
In October 2017, Lillian Lam—representing herself and Tible—filed suit against
the Bravos and their tenant, Chihuahua, in King County Superior Court, alleging
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No. 79018-8-1/4
(1) obstruction of easement, (2) nuisance, (3) disgorgement of profit, (4) damages, and
(5) preliminary and permanent injunction. The Lams claimed that the Bravos violated
the exclusive easement by renting the Bravo Property and allowing the property’s
tenants to block and use the Lams’ easement. The Lams further contended that the
easement excluded the Bravos and their tenants from its use. The Lams asserted that
the Bravos’ violations came at the expense of their quiet enjoyment and that they were
entitled to receive a part of the Bravos’ rental income. The Bravos counterclaimed that
the Lams have continuously trespassed onto portions of their property, “using at least
seven extra feet of [the Bravo Property] by driving their cars daily across the northern
portion.”
At the time the suit commenced, Chihuahua rented the upper apartment of the
Bravo Property. Citing problems with the Lams, Chihuahua declined to renew her
lease. Thereafter, Genaro Gonzalez and Gerardo Pena moved into the vacated
apartment. Following an incident where Tible allegedly harassed Gonzalez, the Bravos
informed the Lams, through counsel, that they would be installing a fence along the
common property line. The Bravos sought and received a permit to build the fence.
The Lams sought a TRO under RCW 7.40.050 to stop the construction of the
fence. The Lams requested, among other things, that the court require that the Bravos
remove all fences and parked vehicles from the easement and enjoin the Bravos from
“being within 100 feet [of] the [easement] unless they are removing obstructions from
the express easement, prescriptive easement/easement by necessity, or Defendants’
property that is being adversely possessed.” The Lams claimed that they have “clear
legal right to access their property,” including “adverse possession rights to the full width
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No. 79018-8-1/5
of the [easement], as used for decades.” (Capitalization omitted.) The Lams contended
that they provided the Bravos with notice of the hearing on the TRO. However, the trial
court disagreed and denied the TRO motion for lack of notice under CR 65(b).1 In
March 2018, the Bravos constructed the fence.
On April 30, 2018, the Bravos moved for partial summary judgment.2 In support
of their opposition to the motion, the Lams submitted the declarations of Nate,
Viengkham, and Na Phonbandit (collectively the Phon band its). The Lams prepared the
declarations, which Nate and Na later testified to signing without reading. The Bravos
believed the declarations were conclusory and contrary to established facts and
subpoenaed the Phonbandits for deposition testimony. The Lams and the Phonbandits
did not appear for the depositions. The Lams allegedly instructed the Phonbandits to
ignore Bravos’ counsel’s request for depositions. As a result, the Bravos filed a motion
for contempt and only then did Nate and Na appear.
Nate’s deposition testimony contracted all three declarations by the Phonbandits.
Specifically, Nate’s declaration stated that neither his brother nor other residents of the
Bravo Property ever used the easement and that Tran and Arnaud, the previous owners
of the Lam Property, consistently drove over a 13-foot-wide area. But at his deposition,
Nate testified that his brother constantly used the easement and parked on the west
side of the Bravo Property; he further testified that no one accessed the Lam Property
from 2006 to 2014. Additionally, although Na’s declaration was in English, the record
contains evidence that she reads minimal English. Following the depositions, the Lams
The court’s order does not provide its reasons for finding that the Lams failed to
provide notice.
2 At this time, Daniel Frohlich filed a notice of appearance for the Lams.
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No. 79018-8-1/6
withdrew the declarations.
After obtaining the Phonbandits’ depositions, the Bravos renewed their motion for
partial summary judgment. The Lams did not submit an opposition. At the beginning of
the hearing on the motion, the Lams moved “to voluntarily dismiss the adverse
possession claim.” The Lams requested dismissal without prejudice, and the Bravos
refused to stipulate unless dismissal was with prejudice. The Lams refused to agree to
dismissal with prejudice, so the court proceeded with arguments on the merits. The
Lams later reasserted that they were moving for voluntary nonsuit under CR 41. The
court responded, “Right. But that’s only on condition that it is without prejudice.” The
court moved on, and in its order for summary judgment, it concluded that the Lams’
motion “wasn’t presented in proper format with adequate notice to the opposing party.”
During the hearing on the motion for summary judgment, the Bravos objected to
the declaration of Timm, contending that the declaration was hearsay. The Bravos
asked the court to strike the declaration and pointed the court to a footnote in their
motion which contained their request. The court concluded that it would not strike the
declaration because the Bravos did not complete the hearsay analysis outside of the
footnote, but it would give it “the appropriate amount of weight.”
Following the hearing, the trial court granted the Bravos’ motion for summary
judgment. The trial court dismissed the Lams’ adverse possession and prescriptive
easement claims with prejudice, quieted title in favor of the Bravos, and concluded that
the 2007 easement was nonexclusive.
Subsequently, on the Bravos’ motion, which was accompanied by Brian
Muchinsky’s declaration, the trial court awarded attorney fees and costs in the amount
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No. 79018-8-1/7
of $46,507.53. The court further granted the Bravos’ motions for sanctions under CR
11. The trial court found that the Lams acted in bad faith by (1) “[djraft[ing] and fil[ing]
false declarations for third parties,” (2) “[ojbstruct[ing] the Bravos’ ability to obtain
discovery by directing witnesses to ignore any attempts by Bravos’ counsel to obtain
information,” (3) making “false statements in their own declarations,” (4) “[a]ssert[ing]
claims that had no basis in fact or law, and (5) attempting “to intimidate the Bravos’
tenants.” The court sanctioned the Lams “in the amount of $5,000 . . . to deter and
punish the Plaintiffs, Lam and Tible, from engaging in vexatious and frivolous legal
practice in the future.” The Lams appeal.
ANALYSIS
The Lams contend that the trial court erred in granting the Bravos’ partial motion
for summary judgment with regard to the claims of adverse possession and the
easement’s exclusivity. We disagree.
We review summary judgment orders de novo, viewing all evidence and
reasonable inferences in the light most favorable to the nonmoving party. Keck v.
Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Under CR 56(c), “summary
judgment is appropriate where there is ‘no genuine issue as to any material fact and .
the moving party is entitled to a judgment as a matter of law.” Elcon Constr., Inc. v. E.
Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012) (alteration in original).
“Summary judgment is proper on a factual issue only if reasonable minds could reach
but one conclusion on it.” Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71(1992).
Once the moving party shows there are no genuine issues of material fact,
[tjhe nonmoving party may not rely on speculation, argumentative
assertions, “or in having its affidavits considered at face value; for after the
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No. 79018-8-118
moving party submits adequate affidavits, the nonmoving party must set
forth specific facts that sufficiently rebut the moving party’s contentions
and disclose that a genuine issue as to a material fact exists.”
Beckerv. Wash. State Univ., 165Wn. App. 235, 245-46, 266 P.3d 893 (2011)
(emphasis added) (quoting Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1,
13, 721 P.2d 1(1986)).
Adverse Possession Claim
The Lams make two contentions with regard to the adverse possession claim: (1)
that they never asserted an adverse possession claim and (2) that the trial court erred in
refusing to grant their oral motion for voluntary nonsuit as to that claim. We disagree
with both contentions.
As to the first contention, the Lams assert that because CR 56(b) allows a party
to seek summary judgment when “a claim, counterclaim, or cross claim is asserted” and
because they did not bring an adverse possession claim within their complaint, the
Bravos could not seek summary judgment on the issue. While the Lams did not bring
an adverse possession claim within their complaint and it is unclear from the record
what exactly they claimed adverse possession rights to, their motion for a TRO claims
that the Bravos’ construction of a fence would enclose “property that is being adversely
possessed, as described in the Complaint.” (Emphasis added.) The TRO motion also
claimed that the Lams have “adverse possession rights to the full width of the driveway,
as used for decades.” And Lillian Lam’s declaration in support of the TRO motion stated
that the prior owners of the Lam Property “continuously used an additional 10 feet of
land on Bravo and Zhang’s property for ingress and egress.” The Lams also stated, as
an “affirmative defense[ ],“ that adverse possession barred the Bravos’ counterclaims.
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No. 79018-8-119
Finally, in their opposition to the Bravos’ motion for summary judgment, the Lams
asserted and presented extensive argument that “the facts establish adverse
possession.” (Capitalization omitted.) Specifically, the Lams claimed that the prior
owners of the Lam Property “continuously and uninterruptedly drove over a 13-foot wide
area on the western side of the Bravo Property.” Indeed, within the opposition and the
TRO motion, the Lams argued that they satisfied all elements of adverse possession.
Furthermore, it would be inequitable to allow the Lams to actively litigate a claim,
provide false declarations in support of a claim, and then—when they realize the claim
is meritless and they must pay attorney fees—allow them to contend that they never
brought the claim. For these reasons, we conclude that although the Lams did not
expressly state an adverse possession claim in their complaint, they nonetheless
“asserted” such a claim for purposes of CR 56(6).
As to the second contention, the Lams argue that CR 41 required the trial court
to grant their motion for a voluntary nonsuit. Under CR 41, the court “shall” dismiss any
action “[u]pon motion of the plaintiff at any time before plaintiff rests at the conclusion of
plaintiff’s opening case.” CR 41(a). “A plaintiff’s right to a voluntary nonsuit must be
measured by the posture of the case at the precise time the motion is made because
the right to dismissal, if any, becomes fixed at that point.” Calvert v. Berg, 177 Wn. App.
466, 472, 312 P.3d 683 (2013). When the plaintiff’s motion is made in response to a
summary judgment motion, “[the] plaintiff retains the right to a voluntary nonsuit until the
motion for summary judgment has been ‘submitted to the court for decision.” Gutierrez
v. Icicle Seafoods, Inc., 198 Wn. App. 549, 553, 394 P.3d 413 (2017) (quoting Paulson
v. Wahi, lOWn. App. 53, 57, 516 P.2d 514 (1973)). A trial court has discretion to grant
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No. 79018-8-1110
the plaintiff’s motion for voluntary nonsuit with prejudice. Escude v. King County Pub.
Hosp. Dist. No. 2, 117 Wn. App. 183, 187, 69 P.3d 895 (2003). Dismissal with prejudice
under CR 41 (a)(4) should be limited to the “circumstances where dismissal without
prejudice would be pointless.” Escude, 117 Wn. App. at 187. We review a trial court’s
decision to deny a motion to dismiss under CR 41 for abuse of discretion. Escude, 117
Wn. App. at 190.
Escude is instructive. There, we consolidated three cases to review whether the
trial court properly exercised its discretion when it dismissed certain claims with
prejudice. Escude, 117 Wn. App. at 187. In the first consolidated case, the plaintiffs
conceded that the dismissed claims lacked merit. Escude, 117 Wn. App. at 187. In the
other two cases, the plaintiffs sought dismissal without prejudice under CR 41(a)(1)(B),
but the defendants opposed dismissal without prejudice because the applicable statutes
of limitation had run. Escude, 117 Wn. App. at 189. The trial courts granted dismissal
with prejudice in each case. Escude, 117 Wn. App. at 189. We concluded that under
CR 41(a)(4), a trial court has discretion to dismiss with prejudice those claims that an
opposing party concedes lack merit or those claims that are outside of the applicable
statutes of limitation. Escude, 117 Wn. App. at 192. We therefore affirmed the trial
courts’ orders of dismissal with prejudice. Escude, 117 Wn. App. at 192.
Here, similar to the plaintiffs in Escude, the Lams concede that they cannot
satisfy the statutory requirements for an adverse possession claim. Escude, 117 Wn.
App. at 192. Thus, dismissal without prejudice would be futile. This is particularly true
considering that a fence now blocks the Lams’ ability to access any part of the Bravos’
property beyond the 10-foot easement. Therefore, we conclude that under CR 41(a)(4),
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No. 79018-8-I/Il
the trial court had authority to dismiss the adverse possession claim with prejudice.
On the basis of its authority to dismiss with prejudice, the trial court properly
presented the Lams with an option: consent to dismissal with prejudice or proceed with
the summary judgment hearing. The Lams chose to proceed. In short, the trial court
properly conditioned consideration of the Lams’ motion on its being a motion with
prejudice. We conclude that when the Lams did not agree to that condition, they
effectively withdrew their motion.3 Accordingly, we next address whether the court
properly granted summary judgment on the merits of the adverse possession claim.
For a court to award a party adverse possession rights to a property, the party’s
use must have been open and notorious, adverse, made under a claim of right in good
faith, and for the statutory time frame. Kunkel v. Fisher, 106 Wn. App. 599, 602, 23
P.3d 1128 (2001). Under RCW 4.16.020, the adverse use must have existed for a
minimum of 10 years. “[TJhe party claiming to have adversely possessed the property
has the burden of establishing the existence of each element.” ITT Ravonier, Inc. v.
BeW, 112 Wn.2d 754, 757, 774 P.2d 6 (1989).
Here, the Lams’ adverse possession claim is meritless because the Lams
admitted they could not satisfy the statutory period “without the declarations of Na and
Nate, the declarations that we pulled back.” In short, the Lams failed to establish an
essential element of their adverse possession claim, and therefore, they did not
establish that there was a genuine issue of material fact. Thus, we conclude that the
~ The Bravos assert that CR 41 permits only the dismissal of an entire case and
not just a single claim, and that the adverse possession claim could only be dismissed
through a motion for amendment to the pleadings under CR 15. Because we conclude
that the Lams withdrew their CR 41 motion upon the trial court’s assertion of its right to
grant the motion with prejudice, we do not address the Bravos’ contention.
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No. 79018-8-1/12
trial court properly granted summary judgment on the issue of adverse possession.
Quiet Title Claim
The Lams next contend that the trial court erred in quieting title to the Bravos
Property “when no such relief was available or requested by the [Bravos] in [their]
motion for summary judgment.” We disagree.
“A trial court sitting in equity has broad discretionary power to fashion equitable
remedies.” Carbon v. Spokane Closing & Escrow, Inc., 135 Wn. App. 870, 878, 147
P.3d 605 (2006). And “[w]e review the authority of a trial court to fashion equitable
remedies under the abuse of discretion standard.” In re Foreclosure of Liens, 123
Wn.2d 197, 204, 867 P.2d 605 (1994).
Here, the Bravos did not request quiet title as the remedy for the summary
judgment motion on adverse possession and did not present it as a counterclaim.
Nonetheless, quiet title is an appropriate remedy for adverse possession claims. An
adverse possession claim clouds the title to the at-issue property, and the remedy of
quiet title resolves those competing ownership claims. Thus, quiet title is often sought
in response to adverse possession claims. ~ Maier v. Giske, 154 Wn. App. 6, 23
P.3d 1265 (2010). Indeed, the doctrine of adverse possession’s “most important[]”
purpose is to quiet title. Chaplin v. Sanders, 100 Wn.2d 853, 859-60, 676 P.2d 431(1984). For these reasons, we conclude that the trial court acted within its discretion to
grant quiet title as an equitable remedy. This is particularly true here, where the Lams
have proven to be vexatious litigants and damages would be an inadequate remedy to
prevent future meritless claims. See Carpenter v. Folkerts, 29 Wn. App. 73, 76, 627
P.2d 559 (1981) (concluding that where the remedy at law was inadequate, an equitable
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No. 79018-8-1/13
remedy was appropriately imposed by the trial court).
The Lams disagree. The Lams claim that because there is no specification as to
which property is being quieted and the trial court is not allowed to provide a remedy
that was not explicitly requested, the trial court erred. First, the Lams cite no case law
for the proposition that a specification must be made as to the property for which title
has been quieted. The court quiets title to the property which is at issue in the dispute.
Here, that includes the alleged adversely possessed property and the easement. The
Lams cite White v. Kent Medical Center Inc. PS for the proposition that a court “will not
consider issues raised for the first time in a reply brief.” 61 Wn. App. 163, 168, 810
P.2d 4 (1991). White is not analogous. There, the party moving for summary judgment
“did not seek summary judgment on or otherwise put into issue the question of
proximate cause.” White, 61 Wn. App. at 169. We “h[e]ld that it was error for the court
to consider the proximate cause issue . . . and to rely on that issue as a basis for
granting summary judgment.” White, 61 Wn. App. at 169. Here, the Bravos did not
raise quiet title for the first time in a reply brief, and the trial court did not rely on the
remedy of quiet title in granting summary judgment. Rather, the court granted the
motion for summary judgment on the adverse possession claim and chose an
appropriate remedy. Thus, White does not control.
Exclusivity of the Easement
The Lams claim that the trial court erred in granting the Bravos’ motion for
summary judgment because a genuine issue of material fact exists as to whether the
easement excludes the Bravos from its use. We disagree.
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No. 79018-8-1/14
“‘An easement is a property right separate from ownership that allows the use of
another’s land without compensation.” Hanna v. Margitan, 193 Wn. App. 596, 606, 373
P.3d 300 (2016) (quoting M.K.K.I., Inc. v. Krueger, 135 Wn. App. 647, 654, 145 P.3d
411(2006)). “If the plain language of the instrument is unambiguous, we will not
consider extrinsic evidence.” Rainier View Court Homeowners Ass’n v. Zenker, 157
Wn. App. 710, 720, 238 P.3d 1217 (2010). To this end, “the mere inclusion of the
phase ‘for the exclusive use’ in the conveying instrument d{oes] not unambiguously
provide” an easement to the dominant tract at the exclusion of the servient track’s use.
Johnson v. Lake Cushman Maint. Co., 5 Wn. App. 2d 765, 784, 425 P.3d 560 (2018). If
a document is ambiguous, the court can consider extrinsic evidence, including the
original parties’ intent, determined from the easement document as a whole, Sunnyside
Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003), “circumstances of
the property when the easement was conveyed, and the practical interpretation given
the parties’ prior conduct.” Johnson, 5 Wn. App. 2d at 785.
Washington case law on exclusive easements is extremely limited. Johnson, a
Division Two case, is the only published Washington case discussing whether the term
“exclusive” creates ambiguity in a document conveying an easement. In Johnson,
property owner plaintiffs granted an easement to the defendant for a park and a road.
Johnson, 5 Wn. App. 2d at 770. The easement granted an “easement for the exclusive
use of the [grantee-defendant].” Johnson, 5 Wn. App. 2d at 770. The plaintiffs brought
an action to quiet title, and the defendant counterclaimed to quiet title to the easement,
which the defendant claimed included the right to exclude the plaintiffs from using the
easement in any way. Johnson, 5 Wn. App. 2d at 768, 773. The defendant filed a
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No. 79018-8-1115
motion for summary judgment; in response, the plaintiffs filed declarations stating that
portions of the easement had only ever been used as a driveway for the plaintiffs’
access to their estates. Johnson, 5 Wn. App. 2d at 774-75. The trial court granted the
defendant’s summary judgment in part and quieted title to the exclusive easement in
favor of the defendant. Johnson, 5 Wn. App. 2d at 769.
Division Two concluded that the trial court erred because the defendant “failed to
show that there was no genuine issue of material fact that their easement was intended
to be an exclusive easement.” Johnson, 5 Wn. App. 2d at 769. In particular, the
defendant had relied “solely. . . on the language in the easement document,” and
despite the easement’s proclamation of exclusivity, the instrument was ambiguous.
Johnson, 5 Wn. App. 2d at 783, 785. The court held that the term “exclusive” in an
easement could be interpreted as (1) a grant to the exclusion of all others except the
grantor, (2) an easement excluding all others, including the grantor, or (3) grant of an
easement in fee simple. Johnson, 5 Wn. App. 2d at 785. Thus, Division Two looked at
the extrinsic evidence provided by the plaintiffs and concluded that there was a genuine
issue of material fact. Johnson, 5 Wn. App. 2d at 785.
Here, like the easement document in Johnson, we conclude that the easement is
ambiguous for multiple reasons. First, as described above, the parties to the 2007
easement failed to select either exclusive or nonexclusive from the preprinted clause
within the easement. Second, exhibit C, which contains the “exclusive” language and is
titled “Legal Description,” is not cited by the easement. Instead, exhibit B is cited as the
“legal description” within the easement document. And exhibit B does not comment on
exclusivity. Finally, as in Johnson, “exclusive” is ambiguous, and the court must
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No. 79018-8-1/16
therefore look to extrinsic evidence to interpret the 2007 easement.
With regard to extrinsic evidence, the Bravos first point to the depositions of Nate
and Na. Nate testified that the 2007 easement’s grantor, Viengkham, constantly drove
and parked on the easement while he resided at the Bravos Property from 2004 to
2016. Both at and after the time of conveyance of the 2007 easement, the Bravo
Property continued to use the property encumbered by the easement. Thus, the
evidence provided shows that the only reasonable interpretation, given the grantor’s
conduct and the circumstances at the time of conveyance, is that the easement is not
exclusive, i.e, does not prohibit use for the benefit of the Bravo Property. See Hayward
v. Mason, 54 Wash. 649, 650-52, 104 P. 139 (1909) (holding that an ambiguous right of
way for the use of a ditch was not exclusive where the grantor used the ditch prior to
and following the deed’s conveyance, and “nothing in the deed, or in the circumstances
existing at the time [the right of way was granted] . . . indicate that the right of way
granted was an exclusive one”).
Moreover, unlike in Johnson, the Lams have failed to present any extrinsic•
evidence that raises a genuine issue of material fact as to whether the easement was
intended to exclude use for the benefit of the servient estate. The Lams point to two
additional pieces of evidence. First, the Lams cite the declaration of Timm. But
contrary to the Lams’ contentions, the declaration provides nothing in the way of clarity.
Timm merely proclaimed that the easement was meant to be “exclusive.” As it is within
an easement document itself, the term “exclusive” in Timm’s declaration is ambiguous.
And even when viewed in the light most favorable to the Lams, the declaration is
detrimental to their claim because Timm clarified that he did not understand “exclusion”
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to mean to the exclusion of the Bravo Property owner. According to Timm, the
Phonbandits were “to continue to enjoy the use of their land without impeding access in
any way to [the Lam Property], and not for the use of any other properties around these
parcels that may also need access now or in the future.”
Second, the Lams assert that an easement granted for ingress and egress in
1983—when compared to the 2007 easement—provides “[t]he reasonable inference.
that the [1983] easement was being modified to be exclusive.” The Lams cite no
authority for the proposition that a court should rely on a prior easement to interpret a
subsequent one. Additionally, the Lams failed to provide any evidence of the 1983
easement’s parties’ prior use or intent. Thus, the 1983 easement could have been
exclusive before the 2007 easement. And the Lams provide no evidence that either
prior property owner intended to modify the 1983 easement when documenting the
2007 easement. In short, the Lams’ contention that the 2007 easement was intended
as a modification is no more than speculation. This is insufficient to show a genuine
issue of material fact. See Becker, 165 Wn. App. at 245-46 (“The nonmoving party may
not rely on speculation, argumentative assertions, ‘or in having its affidavits considered
at face value.” (quoting Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13,
721 P.2d 1 (1986))).
The Lams make five additional claims revolving around the inclusion and
consideration of exhibit C. The claims can be summarized and reduced to the following
three assertions: (1) because the court did not consider exhibit C, the court’s decision
“did not construe the easement as a whole, [and] . . . did [not] give meaning to each part
of the easement;” (2) exhibit C created a genuine issue of material fact; and
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No. 79018-8-1/18
(3) summary judgment “improperly resolve{dJ the factual issue of the intentions of the
original parties when the easement was conveyed.” (Emphasis omitted.) As discussed,
exclusive is an ambiguous term, and the easement, as a whole, including Exhibit C, was
ambiguous. Thus, the Lams’ additional assertions fail.
Finally, the Lams rely on Sunnyside Valley Irrigation District for the proposition
that the trial court failed to consider the easement as a whole. There, the plaintiff, the
dominant tract holder to an easement allowing for the maintenance of an irrigation ditch,
brought suit seeking declaratory relief that the easement on the defendant’s land could
be expanded to provide adequate space for maintenance. Sunnyside Valley Irrig. Dist.,
149 Wn.2d at 876. The trial court agreed and ordered the removal of trees and other
property within a particular area to allow for the necessary expansion. Sunnyside Valley
Irrig. Dist., 149 Wn.2d at 879. Our Supreme Court affirmed because the document
clearly allowed for enlargement of the ditch’s laterals and, thus, enlargement of the area
to be used for maintenance thereof as set forth in the easement document. Sunnyside
Valley Irrig. Dist., 149 Wn.2d at 884. Despite the Lams’ contentions, it is clear from the
2007 easement as a whole that the intent is unclear and must be determined looking at
the circumstances surrounding conveyance and the prior use of the easement by the
grantor. Thus, Sunnyside is unpersuasive.
Attorney Fees and Sanctions
Declaration of Brian Muchinsky
As an initial matter, the Lams claim that the trial court erred by failing to strike the
declaration of Brian Muchinsky. We disagree.
Muchinsky represented Powell Construction LLC, which the Lams sued in early
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No. 79018-8-1/19
2017. He also represented the Bravos’ tenants against prior antiharassment petitions
brought by the Lams. Muchinsky admitted his biases on these bases but filed a
declaration in support of the Bravos’ motion for attorney fees and sanctions. The Lams
also point out that in their lawsuit against Powell Construction, the court reduced
Muchinsky’s request for attorney fees by 41 percent. But the Lams cite no case law to
support their argument that the fee reduction or Muchinsky’s admitted bias required the
trial court to strike the declaration. “Where no authorities are cited in support of a
proposition, the court is not required to search out authorities, but may assume that
counsel, after diligent search, has found none.” DeHeer v. Seattle Post-Intelliqencer, 60
Wn.2d 122, 126, 372 P.2d 193 (1962). Because the Lams cite no authority in support of
their argument, we are not persuaded.
Attorney Fees and Costs Below
The Lams contend that the trial coi~irt erred by granting attorney fees and costs to
the Bravos. We disagree.
“When reviewing an award of attorney fees, the relevant inquiry is first, whether
the prevailing party is entitled to attorney fees.” Unifund CCR Partners v. Sunde, 163
Wn. App. 473, 483-84, 260 P.3d 915 (2011). An award of attorney fees must be based
in “contract, statute, or recognized ground of equity.” Durland v. San Juan County, 182
Wn.2d 55, 76, 340 P.3d 191 (2014). We review de novo whether the trial court had a
legal basis for awarding attorney fees. Durland, 182 Wn. App. at 76. The second
inquiry is “whether the fee award is reasonable.” Unifund CCR Partners, 163 Wn. App.
at 483-84. But when attorney fees are authorized, “in order to reverse that award, the
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No. 79018-8-1/20
opponent must show that the trial court manifestly abused its discretion.” Unifund CCR
Partners, 163 Wn. App. at 484 (emphasis added).
Under RCW 7.28.083(3),
[t]he 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.
When only certain claims support fee recovery under a statute, “the attorney fees award
must properly reflect a segregation of the time spent on issues for which attorney fees
are authorized from time spent on other issues.” Hume v. Am. Disposal Co., 124 Wn.2d
656, 672, 880 P.2d 988 (1994). The party seeking attorney fees has the burden of
segregating unrelated expenses. Loeffelholz v. Citizens for Leaders with Ethics &
Accountability Now (C.L.E.A.N.), ll9Wn. App. 665,690,82 P.3d 1199 (2004).
Here, as discussed, the Lams did assert an adverse possession claim, and the
Bravos prevailed on that claim. Therefore, under RCW 7.28.083(3), the trial court had
statutory authority to award fees and costs. As such, the issue before us is whether the
amount was appropriate. In its order granting fees, the court explained:
The court has carefully reviewed the Declaration of counsel (and
billing entries) as well as the Declaration of Mr. Muchinsky and finds the
attorney fee award of $46,507.53 to be reasonable and necessarily
incurred by the Defendants. The court reduced the amount (from
$53,507.53) to account for segregating work done on the adverse
possession claim from the easement claim.
As the court noted, it was required to and did exclude fees from time spent on the
easement exclusivity claim. Although a court must make a record of fee segregation,4 a
See Travis v. Wash. Horse Breeders Ass’n, 111 Wn.2d 396, 411, 759 P.2d 418(1988).
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No. 79018-8-1/21
court need not identify each time entry it segregates out. Instead, the court must review
the record and the parties’ arguments in order to calculate by how much the fees must
be reduced and state that amount. The court did so here, concluding that the award
should be reduced by $7,000 after “careful[ J review.” And the Lams have failed to show
exactly how the calculation is inaccurate or arbitrary or which fees the trial court
improperly included. Instead, the Lams contest the same aspects of the award that they
contested below and claim that the award’s reduction amount is “grossly inadequate.”
But they have not pointed to sufficient evidence that the trial court failed to exclude the
contested fees.
The Lams state that the attorneys’ work on initial pleadings, discovery, mediation,
strategizing, and trespass do not mention or do not relate to the adverse possession
claim. The Lams contend that the work on initial pleadings, discovery, and mediation do
not mention adverse possession and total $9,146.50. Although it does not mention
adverse possession, the work necessarily involves some response to the adverse
possession claim that the Lams brought in the TRO. Furthermore, some claims will be
“inseparable” despite involving the nonrecoverable easement work. See, ~ Blair v.
Wash. State Univ., 108 Wn.2d 558, 572, 740 P.2d 1379 (1987) (affirming the trial
court’s determination that the “attorney fees incurred for the successful and
unsuccessful claims were inseparable” and the court’s award of all attorney fees). As
such, the Lams’ mere conclusions that the pleadings, discovery, and mediation do not
involve adverse possession work are insufficient to explain how the fees are unrelated
to the adverse possession claim and therefore are improper. Additionally, the Lams
contend that the fees for opposing the TRO and for the motion to compel the
21
No. 79018-8-1/22
Phonband its to appear at their depositions do not relate to adverse possession, but the
TRO explicitly brings an adverse possession claim and the Phonbandits’ declarations
were used to support the Lams’ claim. In short, the Lams’ contentions are unpersuasive
because they failed to show that the included fees were not related to the adverse
possession claim and failed to show how the trial court manifestly abused its discretion.
The Lams, however, contend that the court erred in awarding certain costs to the
Bravos because the costs are not recoverable under RCW 4.84.010, and that the court
erred by awarding paralegal fees.5 First, because the trial court properly awarded fees
under RCW 7.28.083, the limitations on costs under RCW 4.84.010 do not apply.
Second, the Lams did not provide evidence that any improper clerical paralegal fees
were included by the trial court in the award. Thus, we are not persuaded.
CR 11 Sanctions
The Lams also contend that the trial court erred in imposing sanctions under
CR11. Wedisagree.
Under CR 11(a), “[e]very pleading, motion, and legal memorandum of a party.
shall be dated and signed” by the party or the party’s attorney. The signature certifies
that the party or its attorney
has read the pleading, motion, or legal memorandum, and that to the best
of the party’s or attorney’s knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances:
(1) itis well grounded in fact;
(2) it is warranted by existing law or a good faith argument for the
extension, modification, or reversal ofexisting law or the establishment of
new law;
~ To the extent that the Lams argue that paralegal fees are never recoverable,
they are incorrect. See Absher Constr. Co. v. Kent Sch. Dist. No. 415, 79 Wn. App.
841, 845, 917 P.2d 1086 (1995) (providing six factors the court considers when it
determines whether a non lawyer’s work may be paid in an award for attorney fees).
22
No. 79018-8-1/23
(3) it is not interposed for any improper purpose, such as to harass
or to cause unnecessary delay or needless increase in the cost of
litigation; and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on a lack of
information or belief.
CR 11(a) (emphasis added). When a party violates this rule, the court—on a motion or
its own initiative—may impose an appropriate sanction, “which may include an order to
pay to the other party or parties the amount of the reasonable expenses incurred
because of the filing . . , including a reasonable attorney fee.” CR 1 1(a)(4). The
legislature enacted CR 11 “to deter baseless filings and to curb abuses of the judicial
system.” Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992)
(emphasis omitted). We review CR 11 sanctions for an abuse of discretion. King
County Water Dist. No. 90 v. City of Renton, 88 Wn. App. 214, 230, 944 P.2d 1067(1997).
In In re Recall of Lindguist, the petitioners knowingly omitted and misquoted
material portions of documentary evidence to justify a case that was intended to harass
the respondent, refused to comply with subpoenas, and knew that a previous recall
petition for the same issue had been dismissed. 172 Wn.2d 120, 136-38, 258 P.3d 9(2011). Our Supreme Court determined that “[s]ufficient evidence show[ed] that
petitioners brought the recall petition with charges they knew to be frivolous, they did so
for the purpose of harassment, and they acted in bad faith throughout the recall
process.” In re Recall of Lindguist, 172 Wn.2d at 136. The court therefore upheld a
CR 11 sanction of attorney fees against the petitioners. In re Recall of Lindguist, 172
Wn.2d at 137-39.
Similarly, here, the Bravos pointed to sufficient sanctionable conduct. First, the
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No. 79018-8-1124
Lams knowingly filed three false declarations. The Lams failed to investigate the truth
of the declarations, as evidenced by the Lams’ later withdrawal thereof and the wholly
inconsistent testimony of the Phonbandits. Additionally, there was no basis in law for
the Lams’ claim that they were entitled to receive rental income from the Bravos due to
their tenants’ use of the easement, and there was no basis in fact for the Lams’
assertion of adverse possession rights. In short, sufficient evidence was presented to
conclude that the Lams have abused the judicial system by filing lawsuits not well
grounded in fact or based on law. Thus, the trial court did not abuse its discretion in
imposing sanctions.
As a final matter, the Lams contend that they did not receive sufficient notice of
the potential for sanctions and that the lack of notice violated their due process rights.
King County Water Dist. No. 90 is instructive. There, following trial, the district moved
for sanctions in a reply to the city’s objection to a cost bill. King County Water Dist. No.
~, 88 Wn. App. at 231. The trial court did not set a time for a hearing on the motion
and signed the order only two days after the city was served the reply by mail. King
County Water Dist. No. 90, 88 Wn. App. at 231. We concluded that the city, which
failed to reply to the motion, “was given sufficient notice and opportunity to be heard on
the issue of sanctions.” King County Water Dist. No. 90, 88 Wn. App. at 231. Here, the
Lams were able to and did respond to the Bravos’ motion for sanctions. Thus, we
conclude that the Lams received sufficient notice.
Attorney Fees on Appeal
The Bravos contend they are entitled to attorney fees and costs on appeal
pursuant to RAP 18.1 and RCW 7.28.083(3). “A party is entitled to attorney fees on
24
No. 79018-8-1125
appeal if a contract, statute, or recognized ground of equity permits recovery of attorney
fees at trial and the party is the substantially prevailing party.” Hwanq v. McMahill, 103
Wn. App. 945, 954, 15 P.3d 172 (2000). RCW 7.28.083(3) provides a statutory basis
for the award of attorney fees to the prevailing party of an adverse possession claim on
appeal. Workman v. Klinkenberq, 6 Wn. App. 2d 291, 308-09, 430 P.3d 716 (2018).
Because the Bravos are the prevailing party on appeal, we award the Bravos their
reasonable attorney fees and costs on appeal subject to their compliance with
RAP 18.1(d).
For the foregoing reasons, we affirm.
~
WE CONCUR:
25