Russell H. Bensch, et ux v. Don C. Dixon

FILED
DEC 3, 2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
RUSSELL H. BENSCH and CELLIE D. )
BENSCH, ) No. 31149-0-111
)
Respondents, )
)
v. )
) UNPUBLISHED OPINION
DON C. DIXON and PATRICIA E. )
BRITZA, )
)
Appellants. )
KORSMO, C.J. The trial court granted summary judgment in this replevin case.
We conclude that whether or not the respondents abandoned the property at issue is a
factual question that needs to be decided at trial. Accordingly, we reverse the order
granting summary judgment and remand this case for trial.
FACTS
Respondents Russell and Cellie Bensch owned two adjoining 20 acre parcels that
have separate tax numbers. Their residence was located on one of the two parcels. The
couple refinanced their property with Countrywide Bank. The deed of trust covered both
properties, although respondents stated that they believed the deed only covered the
parcel containing the residence.
No. 31 I49-0-III
Bensch v. Dixon
The Bensches defaulted on their obligation to Countrywide, and a nonjudicial deed
of trust foreclosure was commenced in May 20 10. The Bensches believed that the
foreclosure was only of the east parcel containing the house and that the west parcel
would still continue to belong to them. 1 The property was sold to Federal National
Mortgage Association pursuant to the Trustee's Sale on August 27, 20 IO. The Bensches
moved out of the house and moved some of their personal property to another location,
but left a substantial amount of personal property on the west 20 acres. The property was
then listed for sale by the foreclosing institution.
Appellants Don Dixon and Patricia Britza examined the property before making
an offer on it. They observed that wires had been cut out of the electrical box, the vanity
had been pulled out of the bathroom and burned on the driveway, and the carpet had been
ripped out of the living room and removed. They also observed vehicles and heavy
equipment, a large garbage pile, old tires, 55 gallon oil barrels, and piles of metal on the
west parceL They believed the vehicles and equipment could be sold to help offset some
of the cost to clean-up the property and the building materials could be used on the
property. They then successfully purchased the entire 40 acre property.
I The Bensches claim they believed they retained title as the vested owners of the
west parcel until November 2,2011, when the Trustee's Deed was recorded and they
learned the deed purported to transfer all 40 acres.
2
No. 31149-0-111
Bensch v. Dixon
They spent about $77,000 putting the house back in livable condition. Sometime
in December 2011, one of the workmen found an undated note from Mrs. Bensch asking
Ms. Britza for patience and time in allowing the Bensches to remove the "heavy, hard to
move" property from the land as they did not expect the west half of the 40 acres to sell
and explaining that they had been in North Dakota operating a trucking company and it
would take them two to three weeks, costing thousands of dollars in lost revenues, to
move the personal property off the land. Appellants did not allow the respondents back
onto the land to remove the personal property.
On June 8, 2012, 22 months after the foreclosure sale, the Bensches filed a
replevin action against Mr. Dixon and Ms. Britza. The complaint alleged that the
personal property on the west parcel belonged to the Bensches and was not abandoned,
and that appellants had prevented the Bensches from recovering their property. Mr.
Dixon and Ms. Britza asserted multiple affirmative defenses, including abandonment,
estoppel, and laches.
The Bensches moved for summary judgment. They contended they had not
abandoned the property due to their mistaken belief they still owned the land on which
they placed it. In response, Mr. Dixon and Ms. Britza claimed that the Bensches knew,
or should have known, that the bank was foreclosing on the entire property and that they
intended to abandon the property by leaving it there.
3
No. 31149-0-111
Bensch v. Dixon
On September 14,2012, the trial court granted summary judgment in favor of the
Bensches. An order granting possession of personal property and setting conditions was
entered on September 24,2012. Mr. Dixon and Ms. Britza timely appealed.
ANALYSIS
Appellants argue that a factual question exists concerning whether the property
was abandoned or not. We agree.
This court reviews a summary judgment de novo, performing the same inquiry as
the trial court. Lybbert v. Grant County, 141 Wn.2d 29,34, 1 P.3d 1124 (2000). The
facts, and all reasonable inferences to be drawn from them, are viewed in the light most
favorable to the nonmoving party. Id. Ifthere is no genuine issue of material fact,
summary judgment will be granted if the moving party is entitled to judgment as a matter
of law. Id.
The moving party bears the initial burden of establishing that it is entitled to
judgment because there are no disputed issues of material fact. Young v. Key Pharm.,
Inc., 112 Wn.2d 216,225,770 P.2d 182 (1989). When a party makes that initial
showing, then the burden shifts to the opposing party to establish there is a genuine issue
for the trier of fact. Id. at 225-26. The responding party may not rely on speculation or
having its own affidavits accepted at face value. Seven Gables Corp. v. MGMlUA Entm 't
Co., 106 Wash. 2d 1, 13, 721 P.2d 1 (1986). Instead, it must put forth evidence showing the
existence of a triable issue. Id.
4
No. 31149-0-111
Bensch v. Dixon
"A replevin action is essentially one to determine title to, or right of possession of,
personal property." Apgar v. Great Am. Indem. Co., 171 Wash. 494, 498, 18 P.2d 46
(1933). The party bringing a replevin action must show:
(a) That the plaintiff is the owner ofthe property or is lawfully
entitled to the possession of the property by virtue of a special property
interest ... ;
(b) That the property is wrongfully detained by defendant;
(c) That the property has not been taken for a tax, assessment, or fine
pursuant to a statute and has not been seized under an execution or
attachment against the property of the plaintiff, or if so seized, that it is by
law exempt from such seizure; and
(d) The approximate value of the property.
RCW 7.64.020(2). The plaintiff seeking replevin must be able to prevail on the_ strength
of her title or right, regardless of the defendant's title or right to possession. Crystal
Recreation, Inc. v. Seattle Ass 'n o/Credit Men, 34 Wash. 2d 553, 558,209 P.2d 358 (1949).
The general rule is that abandonment of chattel by the owner is a complete defense
to an action for conversion or replevin. See, e.g., 66 AM. JUR. 2D Replevin § 32 (2013),
18 AM. JUR. 2D Conversion § 102 (2013); Sanchez v. Forty's Texaco Servo Inc, 5 Conn.
App. 438, 499 A.2d 436 (1985). Although Washington courts have consistently
recognized abandonment as a defense to an action for conversion, there are no
Washington cases discussing abandonment as a defense to replevin. See, e.g., Jones V.
Jacobson, 45 Wn.2d 265,273 P.2d 979 (1954) (noting that abandonment is a complete
defense to conversion). However, given that most jurisdictions recognize abandonment
as a defense to both replevin and conversion, that Washington courts uniformly recognize
5
No. 31149-0-111
Bensch v. Dixon
abandonment as a complete defense to conversion, and the similarity between replevin
and conversion claims, 2 we believe abandonment also is a complete defense to replevin.
Abandonment of a legal right is generally a question of fact. In re Trustee's Sale
ofReal Prop. ofBrown, 161 Wn. App. 412,415,250 P.3d 134 (2011). To successfully
assert abandonment as an affirmative defense, the party claiming abandonment must
show that the abandonment was both intentional and voluntary. See Ferris v. Blumhardt,
48 Wn.2d 395,402,293 P.2d 935 (1956). Abandonment must be proved by "clear,
unequivocal and decisive evidence." Shew v. Coon Bay Loafers, Inc., 76 Wn.2d 40,50,
455 P .2d 359 (1969). This court has upheld trial court determinations of abandonment
where a property owner with notice of the need to retrieve property failed to do so in a
timely manner even while claiming the property as his own. E.g., Excelsior Mortg.
Equity Fund II v. Schroeder, 171 Wn. App. 333,287 P.3d 21 (2012); Lamar Outdoor
2 Replevin is an action seeking to recover personal property that is being
wrongfully detained by someone who is not the legal owner of the property. See Ray v.
Hill, 194 Wash. 321, 324, 77 P.2d 1009 (1938). Conversion occurs when someone
willfully interferes with any chattel, without lawful justification, and that interference
deprives a person entitled to possession of the property. Brown v. Brown, 157 Wn. App.
803,817,239 P.3d 602 (2010). Replevin and conversion are "concurrent remedies for a
wrongful taking of goods." 18 AM. JUR. 20 Conversion § 65 (2013). However, replevin
is usually an action to recover property, whereas conversion allows recovery of the value
of the property when recovery of the specific property is not possible. See 18 AM. JUR.
20 Conversion § 66 (2013).
6
No. 31149-0-III
Bensch v. Dixon
Adver. v. Harwood, 162 Wash. App. 385, 254 P.3d 208 (2011); Quinn v. Cherry Lane Auto
Plaza, Inc., 153 Wn. App. 710,225 P.3d 266 (2009).
Here, there was conflicting evidence regarding the abandonment issue. Although
respondents stress their confusion over whether both of their parcels were subject to
foreclosure, that issue was an irrelevancy at summary judgment because the evidence had
to be construed in a light most favorable to Mr. Dixon and Ms. Britza. Objectively
viewed, the evidence established that respondents had criminally3 damaged the house and
removed the personal property they desired to keep while piling up a large amount of
additional material on the land with the apparent intent to cause additional expense to the
mortgage holder. The passage of time also suggests that respondents had abandoned the
property. They had been away well over a year before even suggesting that they were
still interested in the property. Abandonment has been found in far shorter periods of
time even while claims of ownership were being asserted. E.g., Excelsior; Lamar; Quinn.
The facts here are even more favorable to the appellants than in those cases.
There was sufficient evidence of abandonment to allow appellants their day in
court on the issue. Because the abandonment claim constituted an unresolved factual
3 See State v. Wooten, No. 87855-2 (Wash. October 31,2013).
7
No. 31 I 49-0-III
Bensch v. Dixon
question, summary judgment was improper. 4 Accordingly, we reverse and remand for
trial.
Reversed and remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Korsmo, C.J.
WE CONCUR:
Brown, J.
4Although respondents did not use the chapter 7.64 RCW summary process, the
trial court did enter an order of immediate possession per that statute. The parties do not
discuss the propriety of this hybrid approach to the case.
8