Gerald C. Clemens V. Clifford J. Jarreau ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GERALD C. CLEMENS, as trustee of
The John and Jean Roden Revocable No. 84399-1-I
Trust,
DIVISION ONE
Appellant/Cross-Respondent,
UNPUBLISHED OPINION
v.
PETER VRINCEANU and ELENA
VRINCEANU, a married couple,
Respondents/Cross-Appellants,
and
CLIFFORD J. JARREAU and ERIKA L.
JARREAU, a married couple;
CHELSEA WALKER, an unmarried
person, and RYAN BAHM, an
unmarried person; ROBERT C.
MORGAN and DEANNA L. MORGAN,
a married couple; MAHMOUD
GHOFRANI AND SEYEDEHNEGAR
NIROMAND HOSSEINI, a married
couple; ANKIT AWASTHI and SONIKA
SONI, a married couple; NANCY R.
LITTLE, an unmarried person, and
TYLER D. KRISTOVICH, an unmarried
person; KARLEN LIE, an unmarried
person, and THANET RANGARATNA
and ACCARIMA SRIMUANG, a
married couple; RASHIDA ANJUM and
IRSHAD AMJAD, a married couple;
DOUGLAS R. SCHROTH, an
unmarried person; MYRLINO HUFANA
and MARITESS HUFANA, a married
couple; HOWARD P. SNOW and
MOLLY L. SNOW, a married couple;
MIN SUG KONG and CHUNG WON
No. 84399-1-I/2
LEE, a married couple; HOANG
INVESTMENTS, LLC, a Washington
limited liability company; CHARLES S.
TAULBEE, an unmarried person;
CHRISTOPHER W. VAN HORNE, an
unmarried person; YING CUI, an
unmarried person; ANGELA CLARE
THAIN, a married person; MARC T.
RITTENHOUSE and SHANA N.
RITTENHOUSE, a married couple;
JONATHAN WILLIAM LAVERING and
JING LAVERING, a married couple;
DALIBOR VAVREK and GENA E.
VAVREK, a married couple; CATALIN
V. POPA and CLAUDIA POPA, a
married couple; JACH INVESTMENT
GROUP LLC, a Washington limited
liability company; BENTLEY MAKKAR,
an unmarried person, and
JASKEERAT SINGH MAKKAR, an
unmarried person; WILLAIM S. FINE
and MARY L. FINE, a married couple;
LEORA M. CLEMANS, an unmarried
person; DERRIN M. WATSON and
KALI E. WATSON, a married couple;
NICHOLAS D. RAVAGNI, an
unmarried person; AYUSH
CHATURVEDI and ADRIANA IOANA
OLARU, a married couple; WELLES
HOFFMANN and KARTIN HOFFMAN,
a married couple; DEN VAN HUYNH
and LACH THI NGUYEN, a married
couple; IRVING Y ZHANG, a married
person; ROMIT GIRDHAR and
GAYATRI WATWE, a married couple;
KARINE AGADZHANOVA, an
unmarried person; ALAN CHUNG and
WAI KUEN FANICA FAN, a married
couple; MARY PATRICIA GERGEN,
an unmarried person; JEREMY DE
SOUZA and NORA DE SOUSA, a
married couple; HELEN K. TAYLOR,
an unmarried person; REYES
CAMINO, an unmarried person;
TIFFANI CARL, an unmarried person;
MAKSIM SUDZILOUSKI and
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No. 84399-1-I/3
SVETLANA SUDZILOUSKAYA, a
married couple; CHANG GUO and
LAIYA JOY LUBBEN, a married
couple; JOHN M. HANSON and
SYLVIA F. HANSON, a married
couple; JJ ZOU and LINGQING ZOU,
a married couple; MARCO S.
NAKAYAMA, an unmarried person;
JOHN CORRING and EMILY
CORRING, a married couple; KEN
MANSON, as Personal Representative
of the Estate of Beatrice Manson;
COLIN LYTEL, an unmarried person;
ROBERT A. JOHNSON and LINDA R.
JOHNSON, a married couple;
MARGRET A. SODERSTROM and
ROBERT A. PURDY, JR., a married
couple; RONALD J. GRANT, an
unmarried person; EVA CSIBA, an
unmarried person; RONGJI GUAN and
GUANGMEI KE, a married couple;
MICHAEL W. SARGENT and
STEPHANIE J. SARGENT, a married
couple; VINCE F. KAELIN, JR, a
married person; JENEE L. HAMILTON,
an unmarried person; LIAN JANG, a
married person, TAM TIEU, a married
person, and SON K. TIEU, an
unmarried person; VY THI PHAM and
HOANG V. NGUYEN, a married
couple; QIAN LI and RUI MA, a
married couple; MICHALE MUTH, and
JOYANNE WALKER, a married
couple; ANINDITA KAR and KAUSHIK
SARKAR, a married couple; FA
QUIANG TANG, an unmarried person;
RICARDO MACIAS TAMEZ and
MELISA SALAS SAENZ, a married
couple; NITYA NAMBIAR and
SNEHITH YENDAL, a married couple;
and ALAN S. JEWETT and SUSAN E.
JEWETT, a married couple,
Defendants.
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No. 84399-1-I/4
BIRK, J. — The trial court as factfinder determined that a Bellevue property,
which we refer to as “Tract A,” is subject to a restrictive covenant prohibiting its
development or use for any purpose other than recreation. Gerald Clemens, who
owns Tract A in his capacity as trustee, appeals. Peter and Elena Vrinceanu,
whose property adjoins Tract A, cross-appeal. They argue the trial court erred by
concluding they do not have a right to recreate on Tract A and by quieting title to
Tract A in Clemens. Finding no error, we affirm.
I
In September 2020, Clemens filed a complaint to quiet title in a parcel of
property in Bellevue. The parcel is Tract A of “Leawood Addition,” which was
platted in 1959. As shown in Figure 1 below, the text “RESERVED FOR
RECREATION” appears on Tract A as it is depicted on the Leawood Addition plat
(Plat).
Figure 1: Plat Excerpt
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No. 84399-1-I/5
Clemens sought to establish legal ownership to Tract A. He also sought a
declaration that the Plat did not convey to other Leawood Addition lot owners,
whom he named as defendants, the “right to use Tract A for recreational purposes
or any other possessory or nonpossessory interests in Tract A.” A group of
defendants (the Jarreau Defendants) counterclaimed for declarations that “the
owner of Tract A . . . may not use Tract A for any purpose other than recreation”
and that the Plat “conveys to all owners of lots in Leawood Addition . . . the right to
use Tract A for recreational purposes, and that this right runs with the land as an
easement, covenant, and/or plat restriction.”
The matter proceeded to a bench trial. The trial court determined that
Clemens held fee title to Tract A as trustee of the John Roden Irrevocable Spousal
Trust, and it quieted title in him. The court also determined that “Tract A is subject
to a restrictive covenant requiring that it be limited to recreational use” and “may
only be used or developed in a manner consistent with a recreational purpose.” It
determined further that “[t]he covenant that restricts the manner in which Tract A
may be used and/or developed does not confer upon the Defendants a right to use
the land.” Clemens appeals, and Peter and ElenaVrinceanu, who own a Leawood
Addition lot that adjoins Tract A and were among the Jarreau Defendants, cross-
appeal.
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No. 84399-1-I/6
II
Clemens argues the trial court erred in determining that the “RESERVED
FOR RECREATION” plat notation is a restrictive covenant enforceable against him
by other Leawood Addition lot owners. We disagree.1
“After a trial court has weighed the evidence in a bench trial, appellate
review is limited to determining whether substantial evidence supports the findings
of fact and, if so, whether the findings support the conclusions of law.” Keever &
Assocs., Inc. v. Randall, 129 Wn. App. 733, 737, 119 P.3d 926 (2005). “Substantial
evidence is evidence sufficient to persuade a fair-minded person of the truth of the
asserted premise.” Id. “If that standard is satisfied, we will not substitute our
judgment for that of the trial court even though we may have resolved disputed
facts differently.” Id. We consider all evidence and draw all reasonable inferences
in the light most favorable to the factfinder’s decision. See Gorman v. Pierce
County, 176 Wn. App. 63, 87, 307 P.3d 795 (2013).
In Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458, 465-66,
194 P. 536 (1920), a plat restricted a parcel to residential use, and despite having
notice of this together with the original platter’s intent to establish a residential
development so restricted, the parcel’s owner, like Clemens here, argued that
because the restriction did not appear on the owner’s deed, the owner could put
1 Before trial, Clemens moved for summary judgment, arguing that Tract A
is not subject to a covenant limiting its use to recreation as a matter of law. The
trial court denied the motion, and Clemens assigns error to that denial. But
Clemens does not raise any arguments in support of that assignment of error other
than the ones we reject below. Accordingly, for the reasons discussed infra,
Clemens does not show the trial court erred by denying summary judgment.
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No. 84399-1-I/7
the parcel to a different use. The court enforced the restriction appearing on the
plat. We reach the same conclusion.
A
“Restrictive covenants are enforceable promises relating to the use of land.”
Viking Props., Inc. v. Holm, 155 Wn.2d 112, 119, 118 P.3d 322 (2005), abrogated
on other grounds by Yim v. City of Seattle, 194 Wn.2d 682, 702, 704, 451 P.3d
694 (2019). “The court’s primary objective in interpreting restrictive covenants is
to determine the intent of the parties.” Riss v. Angel, 131 Wn.2d 612, 621, 934
P.2d 669 (1997). “The relevant intent . . . is that of those establishing the
covenants.” Id. In determining that intent, courts “give covenant language ‘its
ordinary and common use’ and will not construe a term in such a way ‘so as to
defeat its plain and obvious meaning.’ ” Wilkinson v. Chiwawa Cmtys. Ass’n, 180
Wn.2d 241, 250, 327 P.3d 614 (2014) (quoting Mains Farm Homeowners Ass’n v.
Worthington, 121 Wn.2d 810, 816, 854 P.2d 1072 (1993)). Courts may “look to
the surrounding circumstances of the original parties to determine the meaning of
specific words and terms used in the covenants.” Hollis v. Garwall, Inc., 137 Wn.2d
683, 696, 974 P.2d 836 (1999).
By concluding that Tract A was subject to a restrictive covenant limiting its
use to recreation, the trial court impliedly found that the original parties to the
covenant intended it to be so. This finding is supported by substantial evidence.
There was evidence that on February 3, 1958, before Leawood Addition was
platted, William and Pauline Price entered into a contract to sell Ray Shapley, Inc.
(RSI) the land that now constitutes Leawood Addition (Price-RSI contract). The
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No. 84399-1-I/8
same day, the Prices conveyed what would later become Lots 1 and 2 of Block 1
of Leawood Addition to RSI in partial fulfillment of the Price-RSI contract, and about
a year later, RSI began placing advertisements in the Seattle Times for “residential
lots” or “homesites” in Leawood Addition describing a “recreation area” or
“recreational area.”
In August 1959, “G. Ray Shapley – President,” “Harold T. Shapley –
Secretary,” the Prices, and a representative of Lincoln First Federal Savings and
Loan Association executed and recorded the Plat. The Plat bears RSI’s seal, and
the notary’s acknowledgment indicates that the Shapleys signed the Plat as
officers of “[RSI], a Washington Corporation, that executed the within instrument.”
The Plat designates five blocks with numbered parcels. Tract A is the only parcel
identified by a letter. It bears the designation “RESERVED FOR RECREATION,”
and it is the only lot on the Plat with that designation.
In March 1960, RSI placed a series of advertisements in the Seattle Times
for lots in Leawood Addition, which it described as “[a] [p]lanned
[s]ubdivision . . . [c]omplete with one acre recreation area.”
Viewed in the light most favorable to the trial court’s decision, the foregoing
evidence supports an enterprise between the Prices and RSI to plat and market
Leawood Addition for residential development. The “RESERVED FOR
RECREATION” plat notation is unambiguous and supports the enterprise’s intent
to restrict Tract A to recreational use. Furthermore, a reasonable inference from
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No. 84399-1-I/9
the Seattle Times advertisements is that RSI, not only as a party to the Plat2 but
also as owner of two lots that would benefit from the restriction and a contract
purchaser with an interest in the remaining lots, understood the plat notation to
mean that Tract A would be reserved for recreational use for the benefit of other
Leawood Addition lots. Substantial evidence supports that the original
covenanting parties—the Prices and RSI—intended via the plat notation to restrict
Tract A’s use to recreation. This finding supports the conclusion that the plat
notation was an enforceable restrictive covenant.
B
Clemens contends the plat notation was not an enforceable covenant for a
number of reasons. He first argues, quoting 17 William B. Stoebuck & John W.
Weaver, Washington Practice: Real Estate: Property Law § 3.2, at 125 (2d ed.
2004), that “ ‘[a] landowner cannot by himself place a running covenant on his own
land, for the same reason that one cannot make a contract with himself or create
an easement on his own land.’ ” But when the Plat was executed with the
restriction on the use of Tract A, some of the benefitted lots in Leawood Addition
were owned by the Prices, while others were owned by RSI, which also had an
interest in other benefitted lots as a contract purchaser under the Price-RSI
contract.
2 Clemens asserts that RSI was not a party to the Plat.
But a reasonable
inference from the notary acknowledgment and RSI’s seal on the Plat is that the
Shapleys signed on behalf of RSI.
9
No. 84399-1-I/10
Clemens also argues that the restriction on Tract A had to appear in a
declaration of covenants or in a deed to take effect. This argument is without merit.
Although a covenant “is often recorded as a declaration of covenants . . . or is set
forth as a restriction contained in the deed transferring an interest in the
property, . . . [it] may also be contained on the face of [a] subdivision plat.” Hollis,
137 Wn.2d at 691.
Next, Clemens relies on Riverview Community Group v. Spencer &
Livingston, 181 Wn.2d 888, 337 P.3d 1076 (2014), to argue that there was no
enforceable contract. The relevant issue in Riverview was whether a plat
identifying a golf course created an equitable covenant limiting use of the at-issue
property to a golf course. Id. at 897-98. After recognizing that “words on the face
of a plat . . . can establish an equitable covenant limiting the use of land,” the court
held that there were issues of fact as to whether the words “golf course” on a plat
did so under the circumstances. Id. at 897, 899. Clemens points out that one of
those circumstances was that the at-issue property was in fact developed into a
golf course complex, whereas here, Tract A remains undeveloped. But nothing in
Riverview suggests that actual development of the property was determinative.
Furthermore, the golf course example is of limited relevance here, where the Plat
does not identify a specific amenity like a golf course but instead uses the broader
term “recreation,” which, as the trial court determined, “can occur on ‘undeveloped’
land.” Riverview does not support reversal.
10
No. 84399-1-I/11
C
Clemens next argues that the Seattle Times advertisements should not
have been admitted into evidence. Relying on Hollis, Clemens asserts the
advertisements were irrelevant because they were “probative, at most, of the
subjective intent of the minority of original Plattors.”
Hollis held that courts can consider extrinsic evidence in construing a
covenant. 137 Wn.2d at 696. It also held, however, that an affidavit from one of
10 original subdividers calling one party’s interpretation of a covenant “ ‘not true’ ”
was inadmissible because it was “the unilateral and subjective intent of 1 of 10 of
the original contracting parties.” Id. at 696, 698. But unlike the after-the-fact
affidavit in Hollis, the advertisements at issue here were placed shortly before and
after execution of the Plat and, thus, were part of the circumstances surrounding
the Plat’s execution. The real estate contract, the Plat, and the fact of the
advertising support the inference that the advertisements reflected the intent of the
Price-RSI enterprise. Cf. Thorstad v. Fed. Way Water & Sewer Dist., 73 Wn. App.
638, 643, 870 P.2d 1046 (1994) (“To determine contracting parties’ intent, a court
may consider extrinsic evidence, such as circumstances leading to execution of
the agreement and conduct after execution of the agreement, to declare the
meaning of what was written.” (emphasis added)).
Clemens also asserts that the advertisements were inadmissible hearsay.
But as the trial court recognized, the advertisements were not hearsay to the extent
offered to show the intent of the original covenanting parties. This is because they
were probative of that intent regardless whether there was, in fact, a recreation
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No. 84399-1-I/12
area in Leawood Addition. See ER 801(c) (“ ‘Hearsay’ is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”); Betts v. Betts, 3 Wn. App. 53,
61, 473 P.2d 403 (1970) (statement that circumstantially indicates a state of mind,
regardless of its truth, is not hearsay).
Clemens does not show the trial court erred in admitting or considering the
RSI advertisements as evidence of the original parties’ intent.
D
Finally, Clemens asserts that even if the plat notation was an enforceable
covenant between the original parties, the trial court erred by determining it was a
“running” covenant that can be enforced against Clemens by current Leawood
Addition lot owners. We disagree.
Where, as here, the covenant at issue is enforceable in equity based on
notice of the covenant rather than incorporation in a deed, it will run if, in addition
to being enforceable between the original parties, (1) it touches and concerns the
land, (2) the original parties intended to bind successors, (3) there is vertical privity,
and (4) there is notice of the covenant. See 1515-1519 Lakeview Blvd. Condo.
Ass’n v. Apt. Sales Corp., 102 Wn. App. 599, 604, 9 P.3d 879 (2000) (setting forth
the elements for a running real covenant and noting that a running equitable
covenant “requires all of the . . . elements [for a real covenant to run] except
horizontal privity”), rev’d in part on other grounds, 146 Wn.2d 194, 43 P.3d 1233(2002); see also Hollis, 137 Wn.2d at 691 (“Where enforceability of a covenant is
based, in part, on actual or constructive notice of a restriction, rather than on
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No. 84399-1-I/13
incorporation of the restriction in a deed, the covenant is generally considered an
equitable [one].”).3
Clemens does not dispute he had notice of the covenant but asserts it did
not run because there is no evidence the original parties intended to bind their
successors. But an intent to bind successors can be inferred if a covenant touches
and concerns the land, 1515-1519 Lakeview Blvd. Condo. Ass’n, 102 Wn. App. at
605, and a covenant limiting a property’s use touches and concerns the land.
Hollis, 137 Wn.2d at 692. Furthermore, RSI’s advertising is additional evidence
the original parties intended to bind their successors. When the Prices later
conveyed their remaining interest in Leawood Addition to the assignee of RSI’s
interest in the Price-RSI contract, Marvin Mohl, the deed stated it was “subject to
any . . . encumbrances arising after” February 3, 1958, the date of the Price-RSI
contract. The covenant burdening Tract A was one such encumbrance. Deeds
conveying the Prices’ lots to Mohl now owned by the parties described the
properties by reference to the Plat, incorporating “all its contents.” Kelly v. W.
Seattle Land & Improvement Co., 4 Wash. 194, 197, 29 P. 1054 (1892) (where
deed described property according to a recorded plat, “the plat and all its contents
became a part of the conveyance, as though it had been incorporated into it”). 4
3 Although the trial court did not specify which type of covenant it determined
existed here, “we may affirm a trial court on any proper theory.” Yakima Asphalt
Paving Co. v. Wash. State Dep’t of Transp., 45 Wn. App. 663, 665, 726 P.2d 1021(1986); cf. Lake Limerick Country Club. v. Hunt Mfg. Homes, Inc., 120 Wn. App.
246, 254, 94 P.3d 295 (2004) (observing that Washington courts generally have
not distinguished between real and equitable covenants).
4 Presented with comparable facts, a court in another state concluded: “The
weight of authority supports a holding that equitable servitudes may be created by
13
No. 84399-1-I/14
Clemens also argues that vertical privity is absent for three reasons, none
of which are persuasive. First, Clemens points out that the warranty deed
conveying the Prices’ interest in Leawood Addition—including Tract A—to Mohl
“EXCEPT[ED] all easements, restrictions, and reservations of record.” He asserts
this language “extinguish[ed] any reservation on Tract A (and vertical privity) going
forward.” But Clemens provides no analysis or authority to support this assertion,
and as Clemens himself later acknowledges, the “exception” in the deed was likely
just an exception from title warranties. See 9 THOMPSON ON REAL PROPERTY §
82.14, at 736 (3d Thomas ed. 2011) (observing, with regard to drafting warranty
deeds, that “[t]he use of the phrases ‘subject to’ or ‘except’ must be approached
with caution” and that “the ‘except’ clause can create ambiguities as to whether the
‘except’ language creates a technical exception or whether it is merely a limitation
on the title warranties”). Also, as discussed, that deed expressly stated it was
subject to all encumbrances arising after February 3, 1958. Clemens does not
show the trial court erred inasmuch as it was unpersuaded that the covenant
burdening Tract A was extinguished when the Prices conveyed Tract A to Mohl.5
restrictions noted on a plat with reference to which lots are sold.” Stracener v.
Bailey, 737 S.W.2d 536, 539 (Tenn. Ct. App. 1986) (citing Tallmadge v. E. River
Bank, 26 N.Y. 105 (1862); Simpson v. Mikkelsen, 196 Ill. 575, 63 N.E. 1036 (1902);
Freeman v. Island Heights Hotel & Improvement Co., 75 N.J. Eq. 491, 72 A. 974(1909); Williams Realty Co. v. Robey, 175 Md. 532, 2 A.2d 683 (1938)).
5 Clemens also argues that because Mohl at one point acquired most if not
all of the lots comprising Leawood Addition, any covenant created by the Plat was
extinguished under the merger doctrine, which “recognizes the principle that ‘one
cannot have an easement[ or covenant] in one’s own property.’ ” Schlager v.
Bellport, 118 Wn. App. 536, 539 & n.3, 76 P.3d 778 (2003) (quoting Radovich v.
Nuzhat, 104 Wn. App. 800, 805, 16 P.3d 687 (2001)). But Clemens did not argue
merger below. See Wingert v. Yellow Freight Sys., Inc., 146 Wn.2d 841, 853, 50
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No. 84399-1-I/15
Second, Clemens argues that because the covenant was never recorded,
it was extinguished by a 1973 tax foreclosure of Tract A. This argument lacks
merit. Clemens is correct that a restrictive covenant does not survive a tax
foreclosure sale unless it was “established of record” prior to the year for which the
tax was foreclosed. Former RCW 84.64.460 (1961); City of Olympia v. Palzer, 107
Wn.2d 225, 232, 728 P.2d 135 (1986). But the Plat was recorded in 1959, and the
taxes for which Tract A was foreclosed were for 1962. Accordingly, the tax
foreclosure did not extinguish the restrictive covenant appearing on the face of the
Plat.6
Third, Clemens argues that the covenant was extinguished by a 1980 quiet
title action in which title to Tract A was quieted in Chris and Cathy Palzer. But
Clemens cites no authority for the proposition that a judgment quieting title
extinguishes an otherwise enforceable covenant arising from a plat, much less that
it does so where, as here, the judgment quieted title based on a theory of adverse
possession without any specific reference to the covenant.
Clemens does not establish that the trial court erred by concluding that
Tract A is subject to an enforceable covenant restricting its use to recreation.
P.3d 256 (2002) (appellate court generally will not consider arguments not raised
in the trial court). Even if he had, Washington courts do not favor merger and will
not compel it when the parties do not intend for it or when it would be adverse to
the interests of the common owner. WT Props., LLC v. Leganieds, LLC, 195 Wn.
App. 344, 350, 382 P.3d 31 (2016). The record includes evidence that Mohl also
marketed lots in Leawood Addition with reference to a recreational area.
6 In light of this conclusion and also because title to Tract A was quieted in
1980 as discussed infra, we need not reach the Vrinceanus’ argument that there
is no evidence Tract A was actually foreclosed.
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No. 84399-1-I/16
III
In their cross-appeal, the Vrinceanus argue the trial court erred by
determining they do not have a right to use Tract A. They point to nothing
indicating an intent to grant any interest in Tract A to owners of other parcels. They
rely on the trial court’s finding of fact 4, stating, “Historic newspaper advertisements
reference a recreational area in Leawood.” But that finding does not mandate a
conclusion that other lot owners have a right to use Tract A. See Johnson, 113
Wash. at 464 (neighboring owners enforcing plat restriction had no interest or
easement in burdened parcel). The Vrinceanus also argue that the subdivision
statute in effect when the Plat was executed required municipalities to, when
deciding whether to approve a plat, “see that appropriate provision is made in the
plat . . . for streets and other public ways, parks, and playgrounds.” LAWS OF 1951,
ch. 195, § 2. But this does not imply a requirement for particular plats to designate
particular parks or playgrounds on particular terms. The Vrinceanus point to no
evidence that “[t]he [P]lat was created to meet the requirements of the platting
statute then in effect,” much less that the Plat would not have been approved
absent a grant to other lot owners of a right to use Tract A. Cf. Rainier View Ct.
Homeowners Ass’n, Inc. v. Zenker, 157 Wn. App. 710, 722-23, 238 P.3d 1217(2010) (concluding residents of all three phases of a subdivision had the right to
use a park located in “Phase I” where a hearing examiner’s findings and
conclusions demonstrated that without a shared community park, the design for
Phase I would not have been approved).
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No. 84399-1-I/17
In any case, the Vrinceanus’ assertion that the trial court should have found
that the original parties to the Plat intended not only to restrict Tract A to
recreational use but also to grant other lot owners the right to use Tract A asks us
to reevaluate the evidence and find it more persuasive than the trial court did. We
do not do so. See Snyder v. Haynes, 152 Wn. App. 774, 779, 217 P.3d 787 (2009)
(“We defer to the trial court’s determinations on the persuasiveness of the
evidence.”); State v. Living Essentials, LLC, 8 Wn. App. 2d 1, 15, 436 P.3d 857(2019) (“Reviewing courts will not reweigh the evidence . . . on appeal.”).
IV
The Vrinceanus also argue the trial court erred by quieting title to Tract A in
Clemens, who claimed ownership through mesne conveyances and also based on
color of title to vacant and unoccupied land. See RCW 7.28.080 (“Every person
having color of title made in good faith to vacant and unoccupied land, who shall
pay all taxes legally assessed thereon for seven successive years, he or she shall
be deemed and adjudged to be the legal owner of said vacant and unoccupied
land to the extent and according to the purport of his or her paper title.”). In
support, the Vrinceanus refer to the “Restatement of the Case” section of their
opening brief. But they do not explain what aspect of their restatement reveals an
error on the trial court’s part. They do not argue that Tract A, whose “character”
the trial court found “has not changed over time,” is not vacant and unoccupied.
And the record includes evidence that (1) in 1980, title to Tract A was quieted in
Chris and Cathy Palzer, husband and wife; (2) in 1993, Cathy Palzer conveyed
Tract A, as her separate property, to John and Jean Roden; (3) in 2020, John and
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No. 84399-1-I/18
Jean Roden conveyed Tract A to Clemens as trustee of the John and Jean Roden
Revocable Trust; and (4) in 2021, Clemens, as trustee of the John and Jean Roden
Revocable Trust, conveyed Tract A to himself, as trustee of the John Roden
Irrevocable Spousal Trust. The record also includes evidence that the Rodens—
then Clemens as trustee—continuously paid property taxes on Tract A for more
than seven years. The Vrinceanus do not establish that the trial court erred by
concluding, under either theory pleaded by Clemens, that he “holds fee title to
Tract A in his capacity as trustee of the John Roden Irrevocable Spousal Trust.”
We affirm.
WE CONCUR:
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