E. Duane Golphenee And John Solin, App v. Pondilla Estates Community Assoc., Resp

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
E. DUANE GOLPHENEE, a married No. 75001-1-1
individual and JOHN SOLIN, a married
individual,
Appellants,
DIVISION ONE
WILLIAM and SUSAN GOODMAN, husband
and wife; MICHAEL and JOAN LEDRESSAY,
husband and wife, MICHAEL SZEMILLER, an
individual and HUNTER and ANGELA
NEWTON, husband and wife: UNPUBLISHED OPINION
Plaintiffs pursuant to RCW 7.24.110
V.
PONDILLA ESTATES COMMUNITY
ASSOCIATION, a Washington nonprofit
corporation,
Respondent. FILED: April 3, 2017
SPEARMAN, J. — Certain homeowners in the Pondilla Estates
Homeowners Association (Association) were serviced by a private road (Private
Road Owners). In 1991, the Private Road Owners entered into an agreement
with the Association to resolve a dispute over maintenance of the private road.
Under the agreement, the Association members who were not serviced by the
private road agreed to pay half the cost for a bulkhead and the Private Road
Owners assumed responsibility for future maintenance of the road. In May 2015,
No. 75001-1-1/2
two Private Road Owners brought an action under the Declaratory Judgement
Act to challenge the enforceability of this agreement. The trial court applied a six
year statute of limitations and dismissed the suit as untimely. On appeal, the
Private Road Owners challenge the trial court's determination that a six year
statute of limitations applied. Finding no error, we affirm.
FACTS
Pond illa Estates is a residential waterfront community on Whidbey Island.
Of its 31 lots, seven are waterfront lots that may be accessed only by a private
road.
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In 1989, the Private Road Owners became concerned the private road would
collapse due to erosion on the beach. They feared they would lose access to
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No. 75001-1-1/3
their properties unless a bulkhead was built to prevent further erosion. The
Private Road Owners approached Pondilla Estates Community Association
(Association) with their concerns. The Association owns and operates a water
system for the community. It also owns and maintains the community beach,
which may be used by Association members, and is accessible only by the
private road. The Association includes all parcel owners in the Pondilla Estates
plat as well as several adjacent parcel owners who are not in the plat.
The Private Road Owners wanted the Association as a whole to pay for
the bulkhead. The rest of the Association owners wanted the Private Road
Owners to pay for the bulkhead. The Association sought legal opinions and
received the advice that the Association was "most likely" responsible for
maintenance, but that it would be "difficult to predict what the outcome would be
in Court." Clerk's Papers(CP) at 217. In order to resolve the dispute, the
Association entered into an agreement with the Private Road Owners in 1991.
The Association agreed to pay half of the costs and expenses to build the
bulkhead and the Private Road Owners agreed to maintain and repair the private
road in the future. In addition, the Private Road Owners granted Association
members an easement over the private road in order to access the community
beach. The agreement specified that it was binding on the parties, heirs,
successors and assigns, and as such was considered as running with the land.
The Association paid $15,500 for half of costs.
The agreement was recorded with the Island County Auditor on
September 18, 1991. It was re-recorded on March 23, 1992 to include two legal
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No. 75001-1-1/4
descriptions of parcels that were named in the agreement, but inadvertently
omitted in the attachment containing the legal descriptions.
The appellants, E. Duane Golphenee and John Solin (Solin), are Private
Road Owners. On May 2015, they filed this suit seeking a declaration that the
agreement is void or unenforceable. The Association moved to dismiss, arguing
that the suit was untimely and that plaintiffs failed to join necessary parties. The
Association submitted a number of exhibits and affidavits in support of its motion.
The trial court granted the motion to dismiss, finding that the action was barred
by a six year statute of limitations.
DISCUSSION
We review the trial court's summary judgment decision de novo.1 Michael
v. Mosquera-Lacy, 165 Wash. 2d 595, 601, 200 P.3d 695 (2009). Summary
judgment is appropriate only when there is no genuine issue of material fact and
a party is entitled to judgment as a matter of law. CR 56(c).
Consideration
Solin first contends that the agreement fails for lack of consideration. He
argues that the Association had a preexisting legal duty to maintain the private
road. As a result, according to Solin, the money the Association paid toward the
bulkhead in 1991 was not new consideration and thus, cannot support the
agreement. The Association argues that there is consideration because the
Private Road Owners received immediate funding for the bulkhead in exchange
1 The parties agree that because the court considered evidence outside of the complaint,
the panel should treat the motion to dismiss as one for summary judgment.
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No. 75001-1-1/5
for the promise that the Association as a whole would have no future financial
responsibility for maintaining the private road. The Association is correct.
A contract must be supported by consideration. Consideration is "any act,
forbearance, creation, modification or destruction of a legal relationship, or return
promise given in exchange." Labriola v. Pollard Grp., Inc., 152 Wash. 2d 828, 833,
100 P.3d 791 (2004)(quoting King v. Riveland, 125 Wash. 2d 500, 505, 886 P.2d
160 (1994)). Consideration is a bargained-for exchange of promises. Id. at 833
(citing Williams v. Fruit Co. v. Hanover Ins. Co., 3 Wash. App. 276, 281, 474 P.2d
577 (1970)). A performance of or a promise to perform a preexisting duty does
not constitute consideration. Multicare Med. Ctr. v. State, Dep't of Soc. & Health
Servs., 114 Wash. 2d 572, 584-585, 790 P.2d 124(1990)superseded by statute on
other grounds by Neah Bay Chamber of Commerce v. Dep't of Fisheries, 119
Wash. 2d 464, 832 P.2d 1310 (1992). But "'[t]he promise of one party to forgo his
rights under the contract is sufficient consideration for the promise of the other
party to forgo his rights." Rosellini v. Banchero, 83 Wash. 2d 268, 273, 517 P.2d
955(1974)(quoting 15W. Jaeger, Williston on Contracts § 1826 at 487(3d ed.
1972)). "Forbearance to prosecute a valid claim or assert a legal right constitutes
sufficient consideration for a contract. . . . It is not essential ... that the claim be
indisputable or legally certain; where the validity of the claim is doubfful, the
existence of a possibility of recovery is sufficient." Johnson v. S.L. Savidge, Inc.,
43 Wash. 2d 273, 276, 260 P.2d 1088 (1953).
The Association and Private Road Owners had a bona fide dispute over
legal responsibility for the private road. Each could have asserted a legal right
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No. 75001-1-1/6
against the other. The Private Drive Owners could have sued the Association
members for pro rata contribution toward the road, and the Association could
have asserted that it had no obligation to pay for the bulkhead. Instead, they
each agreed to forbear prosecution of their legal claims. This constitutes
sufficient consideration for the 1991 agreement.
Statute of Frauds
Next, Solin argues that the agreement is void because it does not comply
with the statute of frauds due to a number of alleged defects.
The purpose of the statute of frauds is to prevent fraud arising from
inherently uncertain oral agreements. Howell v. Inland Empire Paper Co., 28 Wn.
App. 494, 498,624 P.2d 739 (1981). It requires that "[e]very conveyance of real
estate, or any interest therein, and every contract creating or evidencing any
encumbrance upon real estate, shall be by deed. . ." RCW 64.04.010. Deeds
must "be in writing, signed by the party bound thereby, and acknowledged. . . ."
RCW 64.04.020. A deed granting an easement must have a description of the
land such that an easement can be located on the servient estate. Maier v.
Giske, 154 Wash. App. 6, 16, 223 P.3d 1265(2010)(citing Sunnyside Valley kr.
Dist. v. Dickie, 149 Wash. 2d 873, 73 P.3d 369 (2003)). This requires that servient
estate have an adequate legal description. Berg v. Ting, 125 Wash. 2d 544, 569,
886 P.2d 564 (1995).
Solin first argues that the agreement is void under the statute of frauds
because the originally recorded agreement lacked legal descriptions of two
dominant estate parcels. The agreement was re-recorded to include those legal
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No. 75001-1-1/7
descriptions. A trial court may reform a deed to reflect the parties' intent where a
scrivener's error leads to a deficient legal description of land. Glepco, LLC v.
Reinstra, 175 Wash. App. 545, 554, 307 P.3d 744(2013)(citing Halbert v. Forney,
88 Wash. App. 669, 673, 945 P.2d 1137 (1997)). Here, the trial court referred to the
omission as a "scrivener's error," and analyzed the re-recorded agreement for
compliance with the statute of frauds. CP at 6, 10. This was an appropriate
exercise of the trial court's authority to reform the agreement as it is expressed in
the re-recorded agreement. Tenco, Inc. v. Manning, 59 Wash. 2d 479, 484, 368
P.2d 372 (1962). We find that the agreement, as reformed by the trial court,
complies with the statute of frauds.
Solin next contends the agreement violates the statute of frauds because
it does not legally describe all Association parcels. This argument fails because,
as discussed above, the legal description in a deed granting an easement is
sufficient if it permits location of the easement on the servient estate. See Maier,
154 Wash. App. at 16. Here, the legal descriptions for all Association parcels are
not required because they are not necessary to locate the easement.
Solin argues that the Private Road Owners' spouses must sign the
agreement. He does not explain or cite to which spouse did not sign the
agreement. If such a signature is missing, its omission does not render the
agreement void because a unilateral encumbrance by one spouse is merely
voidable, and only at the election of the nonjoining spouse or partner. See
Sander v. Wells, 71 Wash. 2d 25, 28, 426 P.2d 481 (1967)(citing Tombari v.
Griepp, 55 Wash. 2d 771, 350 P.2d 452(1960)).
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No. 75001-1-1/8
Solin argues that the agreement does not comply with the statute of frauds
because it does not describe the bulkhead. The argument is without merit.
Because the bulkhead was not conveyed, no legal description of it is necessary.
Solin argues that the terms of the agreement are not sufficiently definite
because they lack material terms related to maintenance of the bulkhead as
between the Private Drive Owners. An agreement under the statute of frauds
"must embody all of the essential and material parts of the contemplated lease
with sufficient clarity and certainty to show that the minds of the parties have met
on all material terms and with no material matter left for future agreement or
negotiation." Friedl v. Benson, 25 Wash. App. 381, 387, 609 P.2d 449(1980)(citing
72 Am.Jur.2d Statute of Frauds § 285, at 805(1974). But the agreement here is
between the Private Drive Owners and the Association. It settles the dispute over
financial responsibility for the private road and includes sufficiently definite terms
to bind the Private Drive Owners and the Association. The existence or
nonexistence of any terms between the Private Driver Owners regarding
maintenance of the bulkhead is irrelevant.
Solin also contends that the agreement must be signed by all Association
members in the Pondilla Plat. The agreement only bears the signatures of the
Private Road Owners and the President and Secretary of the Association. He
argues that each Pondilla Plat owner also owns part of the servient estate
because, according to the trial court, they are part owners of the private road.
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No. 75001-1-1/9
Thus, according to Solin, each Pondilla Plat owner must sign the agreement to
grant an easement to the non-Pondilla Plat Association members.2
Solin is correct that the statute of frauds requires bound parties to sign the
agreement. But even if the agreement lacks signatures of all Pondilla Plat
owners, we decline to invalidate it because there has been part performance of
the agreement.
Under the doctrine of part performance, an agreement to convey an
interest in real estate that does not comply with the statute of frauds may be
proved and specifically enforced if there is sufficient part performance of the
agreement. Berg, 125 Wash. 2d at 556 (citing Miller v. McCamish, 78 Wash. 2d 821,
826, 479 P.2d 919 (1971)). The part performance doctrine empowers
Washington Courts to enforce an agreement to convey an interest in real
property that does not satisfy the statute of frauds if equity and justice so require.
Id. at 571 (citing Miller, 78 Wash. 2d at 826). We examine three factors to determine
if there has been part performance of the agreement so as to take it out of the
statute of frauds:(1) delivery and assumption of actual and exclusive possession;
(2) payment or tender of consideration; and (3) the making of permanent,
substantial and valuable improvements, referable to the contract. Id. at 556.
2 In 1991, the understanding of the Association and the private road owners was that the
private road was owned by the private road owners or the developers. So at the time of
execution, it complied with the statute of frauds requirement that servient estate owners sign the
agreement because the private road owners signed it. It was not until the current litigation that
Solin argued, and the trial court found, that the private road was partly owned by the Association.
This gave rise to Solin's argument that the agreement lacked the signatures of all Pondilla Plat
owners and was therefore invalid under the statute of frauds.
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No. 75001-1-1/10
Here, the first factor has diminished probative value because possession
of an easement will never be exclusive. With respect to the second factor, the
Association did make its payment toward construction of a bulkhead. The third
factor is also satisfied because a bulkhead was built in reference to the
agreement.3 We conclude that under the doctrine of part performance, the
agreement is enforceable even though it is not in strict compliance with the
statute of frauds. Accordingly, we hold that the Association members are not
obligated to contribute financially to the maintenance of the private road.
Statute of Limitations
Solin argues that the agreement is a continuous contract because it runs
with the land and requires ongoing maintenance by the Private Road Owners. He
contends that the trial court erred by applying the six year statute of limitations
because performance under the agreement is not complete.
Solin does not cite cases to support that a covenant running with the land
indefinitely tolls the statute of limitations. The agreement required the Association
to contribute half of the costs and expenses for the bulkhead. The Association
made its contribution and performance of the contract was complete. The
agreement shifted the burden for maintenance onto the Private Drive Owners,
but the manner and means by which they accomplished this is irrelevant to the
obligations between the parties. The claim that the contract at issue is a
3 The Association "shall contribute one-half of the costs and expenses incurred with
respect to the construction of a log pile bulkhead to deter and prevent erosion and damage to the
Private Road...." CP at 143.
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No. 75001-1-1/11
continuous one and thereby not subject to a statute of limitations is without merit.
The trial court did not err when it found that this action was barred.
Admission of Evidence
Solin argues that the trial court erred by admitting two legal opinions on
who owns the private road. He contends that the lawyer's advice in the "position
paper" is hearsay. He also contends that an affidavit describing the developers'
intent for the private road is irrelevant and hearsay. A trial court's decision to
admit evidence is reviewed for abuse of discretion. State v. Young, 160 Wash. 2d
799, 805-06, 161 P.3d 967(2007). Hearsay is a statement offered in evidence to
prove the truth of the matter asserted. ER 801(c). But here, the statements were
not offered to prove legal responsibility for the road. They were offered to show
the ambiguity faced by the Association and private drive owners. As such, neither
falls within the ambit of the hearsay rule. The trial court did not err by admitting
the legal opinions.
Attorney Fees
The Association requests an award of attorney fees for a frivolous appeal
under RAP 18.9(a). An appeal is frivolous "if the appellate court is convinced that
the appeal presents no debatable issues upon which reasonable minds could
differ and is so lacking in merit that there is no possibility of reversal." In re
Marriage of Foley, 84 Wash. App. 839, 847, 930 P.2d 929(1997)(citing Mahoney
v. Shinpoch, 107 Wash. 2d 679, 691, 732 P.2d 510 (1987)). Solin's appeal presents
debatable arguments so we decline to award attorney fees for a frivolous appeal.
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No. 75001-1-1/12
Affirmed.
WE CONCUR:
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