Edward Praxel, Et Ux, V Mark Hall & Lisa Rock

Filed
Washington State
Court of Appeals
Division Two
December 28, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
EDWARD PRAXEL and KATHLEEN No. 55072-5-II
PRAXEL, Husband and Wife,
Appellants,
v.
KELLY BAGNELL and GORDY BAGNELL, UNPUBLISHED OPINION
Husband and Wife,
Respondents,
MARK HALL and LISA ROCK,
Respondents.
LEE, C.J. — Edward and Kathleen Praxel appeal the superior court’s order granting partial
summary judgment in favor of Kelly and Gordy Bagnell1 and dismissing the Praxels’ adverse
possession claim. The Praxels argue that there was a genuine issue of material fact regarding
hostile possession of the disputed property. We disagree and affirm.
FACTS
Kelly owned property at 195 Camp Creek Road in Montesano, Washington. Kelly lived
at the property from 1991-2003. Kelly purchased the property from her father, Richard Jacobs.
1
We refer to the Praxels and Bagnells collectively by their last name. When necessary to refer to
individuals with the same last name, we use first names for clarity. We intend no disrespect.
No. 55072-5-II
Jacobs lived on the adjacent property at 205 Camp Creek Road. In 1996, Jacobs erected a
fence around 205 Camp Creek Road. After putting up the fence, Jacobs also constructed a
windmill on the property. Jacobs lived at this property until his death.
The Praxels purchased 205 Camp Creek Road from Jacobs’ estate in 2015. After the
purchase, the Praxels had a survey conducted on the property. The survey showed that the fence
was not the boundary line between Kelly’s property and the Praxels’ property, but was built on
Kelly’s property, creating an area of disputed property.
On August 4, 2016, the Praxels filed an action against the Bagnells to quiet title to the
property through adverse possession. The complaint also sought damages resulting from damage
the Bagnells caused to the fence and the property. The Bagnells filed an answer to the complaint,
which included counterclaims for tortious interference with the sale of property, trespass, nuisance,
and willful interference.
On June 2, 2017, the Bagnells filed a motion for partial summary judgment on the Praxels’
adverse possession claim. The Bagnells argued that the Praxels’ adverse possession claim must
fail because Jacobs permissively used the Bagnells’ property. The Praxels filed a response to the
motion for partial summary judgment, arguing that Jacobs adversely possessed the disputed
portion of the property since he built a fence around his property in 1996.
The Bagnells supported their motion for partial summary judgment, in part, by submitting
Kelly’s deposition. In the deposition, Kelly explained that she and Jacobs agreed on where to
install the fence:
We agreed on where [the fence] should sit just for aesthetic reasons, on where it
will—you know, to square things up and so forth, and then he paid to have it put
in.
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No. 55072-5-II
Clerk’s Papers (CP) at 72. Kelly also explained that the drain field for her house was on the other
side of the fence. The drainfield had been installed prior to the fence being erected. Both Kelly
and Jacobs maintained the disputed property. Kelly stated that she stained the fence and both she
and Jacobs arranged for the property to be mowed. There was also a fire pit on the property that
she and Jacobs used. Kelly admitted that she did not know the windmill was on her property until
the Praxels’ survey; however, she did know about the placement of the windmill and that the
placement was just an estimate:
When my dad had [the windmill] put in, he knew it was roughly—he thought he
was right on the corner of the property line, so he knew he was close. But he just
kind of walked it off.
CP at 83. The Praxels did not object to or move to strike any of Kelly’s statements made in the
deposition.
A superior court commissioner granted the Bagnells’ motion for partial summary
judgment. The commissioner found that there was no genuine issue of material fact that the
relationship between Kelly and Jacobs was not adversarial and that the fence was erected by
agreement. The commissioner quieted title in favor of the Bagnells.
The Praxels moved to revise the commissioner’s order granting the Bagnells’ motion for
partial summary judgment. The superior court denied the motion to revise.
The Praxels then moved for summary judgment on the Bagnells’ counterclaims. The
superior court granted summary judgment on the Bagnells’ tortious interference and nuisance
claim. The superior court also granted summary judgment on a portion of the Bagnells’ trespass
claim. The Bagnells’ then stipulated to dismissal of the unresolved portion of the trespass claim.
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No. 55072-5-II
The Praxels appealed the superior court’s order granting partial summary judgment in favor
of the Bagnells and dismissing the Praxels’ adverse possession claim. After the Praxels appealed,
the Bagnells filed a motion to substitute parties because they sold their property to Mark Hall and
Lisa Rock.2 A commissioner of our court granted the Bagnells’ motion to substitute parties.3
ANALYSIS
A. LEGAL PRINCIPLES
We review summary judgment orders de novo. Sartin v. Estate of McPike, 15 Wn. App.
2d 163, 172, 475 P.3d 522 (2020), review denied, 196 Wn.2d 1046 (2021). Summary judgment is
appropriate if there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c). A genuine issue of material fact exists if reasonable minds
could disagree on the conclusion of a factual issue. Sartin, 15 Wn. App. 2d at 172. We review all
facts and reasonable inferences drawn from those facts in the light most favorable to the
nonmoving party. Id.The moving party “bears the initial burden to show there is no genuine issue of material
fact.” Id. The moving defendant can meet this burden by showing that the plaintiff cannot support
their claim with any evidence. Id. The burden then “shifts to the plaintiff to present specific facts
that reveal a genuine issue of material fact.” Id. If a plaintiff fails to put forth sufficient evidence
to create a question of fact on an essential element that he or she will have the burden of proof at
trial, then summary judgment is appropriate. Id.
2Mot. to Substitute Parties at 1 (Dec. 11, 2020).
3
Ruling, (Dec. 14, 2020).
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No. 55072-5-II
B. KELLY’S STATEMENTS
The Praxels argue that the superior court should not have considered Kelly’s statements
because they violated the “Dead Man Statute,” chapter RCW 5.60.030.4 We do not reach this
issue.
“If a party fails to object to an affidavit or bring a motion to strike improper portions of an
affidavit, any error is waived.” Podbielancik v. LLP Mortg. Ltd., 191 Wn. App. 662, 666, 362
P.3d 1287 (2015); Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 (1979).
Further, we consider only issues that are brought to the attention of the superior court on the motion
for summary judgment. RAP 9.12.
Here, the Praxels did not move in the superior court to strike any of Kelly’s statements in
her deposition and raise the issue of Kelly’s statements violating the Dead Man Statute for the first
time on appeal. Because the Praxels did not move to strike Kelly’s statements at the superior court,
they have waived the argument that the superior court erred by considering Kelly’s statements.
4
RCW 5.60.030 provides:
No person offered as a witness shall be excluded from giving evidence by
reason of his or her interest in the event of the action, as a party thereto or otherwise,
but such interest may be shown to affect his or her credibility: PROVIDED,
HOWEVER, That in an action or proceeding where the adverse party sues or
defends as executor, administrator or legal representative of any deceased person,
or as deriving right or title by, through or from any deceased person, or as the
guardian or limited guardian of the estate or person of any incompetent or disabled
person, or of any minor under the age of fourteen years, then a party in interest or
to the record, shall not be admitted to testify in his or her own behalf as to any
transaction had by him or her with, or any statement made to him or her, or in his
or her presence, by any such deceased, incompetent or disabled person, or by any
such minor under the age of fourteen years: PROVIDED FURTHER, That this
exclusion shall not apply to parties of record who sue or defend in a representative
or fiduciary capacity, and have no other or further interest in the action.
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No. 55072-5-II
Further, because the Praxels did not bring any issue regarding the Dead Man Statute to the attention
of the superior court, we do not consider the issue on appeal. Accordingly, we do not consider the
Praxels’ challenge to the superior court’s consideration of Kelly’s statements.
C. SUMMARY JUDGMENT ON ADVERSE POSSESSION
The Praxels argue that there is a genuine issue of material fact regarding whether Jacobs’
use of the land was hostile. We disagree.
Adverse possession is established when the possession is (1) exclusive, (2) actual and
uninterrupted, (3) open and notorious, and (4) hostile. Ofuasia v. Smurr, 198 Wn. App. 133, 143,
392 P.3d 1148 (2017). “Hostility requires ‘that the claimant treat the land as his own as against
the world, throughout the statutory period.’” Id. at 144 (internal quotation marks omitted) (quoting
Nickell v. Southview Homeowners Ass’n, 167 Wn. App. 42, 50, 271 P.3d 973, review denied, 174
Wn.2d 1018 (2012)). “Permission, express or implied, from the true owner negates the hostility
element because permissive use is inconsistent with making use of property as would a true
owner.” Teel v. Stading, 155 Wn. App. 390, 394, 228 P.3d 1293 (2010).
Generally, fences are expressions of hostile possession. Ofuasia, 198 Wn. App. at 144.
The existence of a fence is prima facie evidence of hostile possession when the fence purports to
be a boundary fence and the fence effectively excludes an abutting owner from the property. Id.
Here, Kelly stated that she and Jacobs agreed on where to put the fence. Because placement
of the fence was done with Kelly’s permission and agreement, the fence is not evidence of hostile
possession of the property. Further, because Kelly stated that she helped to maintain the disputed
area and that both she and Jacobs used the area, the fence did not effectively exclude Kelly from
the property. Rather, Kelly’s use of the disputed area highlights permissiveness. The Praxels do
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No. 55072-5-II
not dispute any of these facts; instead, the Praxels rely on the existence of the fence itself to
establish hostile possession. The mere presence of a fence based on this record does not create
any genuine issues of material fact.
The Praxels also argue that the construction of the windmill on the disputed property is
evidence of hostile possession. Although the windmill was constructed after the fence, Kelly was
aware that Jacobs was constructing a windmill and knew that the placement of the windmill was
based only on an estimate of the location of the property line because Jacobs just “walked it off”
to estimate where the property line was before building the windmill. CP at 83. The Praxels do
not dispute these facts. Therefore, there is no genuine issue of material fact regarding whether the
windmill and its placement was with Kelly’s permission; the mere construction of the windmill
was not evidence of hostile use.
Because the Praxels cannot show that there is a genuine issue of material fact regarding
Jacobs’ hostile use of the disputed property, their adverse possession claim fails. Therefore, the
superior court properly granted partial summary judgment to the Bagnells on the Praxels’ adverse
possession claim. Accordingly, we affirm.
D. ATTORNEY FEES ON APPEAL
Hall and Rock request attorney fees on appeal under RAP 18.1 and RCW 7.28.083(3). We
grant the request for attorney fees.
RAP 18.1(a) allows this court to award attorney fees “[i]f applicable law grants to a party
the right to recover reasonable attorney fees or expenses on review.” RCW 7.28.083(3) provides:
The 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
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No. 55072-5-II
prevailing party if, after considering all the facts, the court determines such an
award is equitable and just.
RCW 7.28.083(3) allows an award of attorney fees on appeal. See Neighbors v. King County, 15
Wn. App. 2d 71, 91, 479 P.3d 724 (2020).
Here, Hall and Rock are the prevailing party on appeal and, therefore, are entitled to their
appellate attorney fees. Awarding attorney fees to Hall and Rock is just and equitable because
Hall and Rock had to defend against an appeal based primarily on a challenge to evidence that the
Praxels failed to move to strike at the superior court. Therefore, we grant Hall and Rock’s request
for attorney fees on appeal.
We affirm and grant appellate attorney fees to Hall and Rock.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J.
We concur:
Cruser, J.
Price, J.
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