Hirst v. Budde

Decision Date19 January 2023
Docket Number36827-1-III
PartiesMARK HIRST and MAUREEN HIRST, husband and wife, Appellants, v. MARTIN BUDDE and KIMBERLYN BUDDE, husband and wife, Respondents.
CourtWashington Court of Appeals


Fearing, J.

In this adverse possession suit, the title owners to the disputed territory appeal the superior court's quieting of title to the adverse possessor and the award of reasonable attorney fees and costs to the adverse possessor. Because ample evidence supports the grant of adverse possession, we affirm the superior court's substantive ruling. Because the adverse possessor timely sought an award of reasonable attorney fees and costs and the superior court did not abuse its discretion when awarding fees, we affirm the award of fees and costs.


We glean the facts primarily from the superior court's findings of fact. The trial concerned the defendants Martin and Kimberlyn Budde's quest to gain title by adverse possession to a section of plaintiffs Mark and Maureen Hirst's parcel of land. The two couples are neighbors. For illustrative purposes only, we place a diagram of the two parcels at the end of our narration of facts.

Maureen and Mark Hirst purchased a Newman Lake parcel of land in 2003. In 2004, Martin and Kimberlyn Budde purchased and moved onto the adjacent property. When the Buddes purchased their parcel, Martin Budde saw a line of ribbons which he believed delineated the eastern boundary adjoining the Hirst property.

When Martin and Kimberlyn Budde moved onto their parcel, the family stored belongings in a sea container, which they rested in an area north of their residence referred to by the family as the "'bench area.'" Clerk's Papers (CP) at 137. Commencing in 2005, Martin Budde and his daughters sawed trees and brush in the bench area in order to clear the area and to procure fuel for a fireplace and wood stove. The Budde daughters also camped and drove four-wheel vehicles in the bench area.

Martin Budde desired a recreational vehicle campground in the cleared bench area. In 2007, Budde completed a road to the prospective campground. The parties call the road the "'[l]oop [r]oad'" or "'gravel road.'" CP at 139. The Hirsts took no step to prevent Budde's construction of the loop road.

Maureen Hirst desired a venue for weddings and other events in an area referenced "'Maureen's Meadow.'" CP at 140. At Hirst's request, Martin Budde helped ready the venue for Hirst's nephew's wedding in 2008. Both the Budde and Hirst families hosted events at Maureen's Meadow thereafter.

In 2008, Martin Budde constructed a zipline north of the Budde dwelling. Both the Budde and Hirst families used the zipline. In 2013, Martin Budde constructed a shop building where the sea container once rested. Mark Hirst asked Budde whether the shop sat too close to the property line. Budde responded in the negative. Hirst accepted this answer.

The placid, sylvan neighborhood ceased in 2015. That year the Hirsts hosted numerous weddings at Maureen's Meadow. This activity disappointed the Buddes, who objected to the Hirsts operating a wedding business. We do not know why one could operate a recreational vehicle campground in the pastoral setting, but not a wedding venue. In response, the Buddes barred use of the loop road for access to Maureen's Meadow. Every action causes a reaction. The Hirst family constructed a wooden fence to block the Buddes from accessing Maureen's Meadow. The fence's orientation aligned with Martin Budde's imagined property line and did not encroach into the recreational vehicle campground. The Hirsts nailed "'No Trespassing'" signs aimed at the campground. CP at 142.

In 2016, Mark and Maureen Hirst ordered a survey which revealed that the true property line traversed the Buddes' recreational vehicle campground and shop building. The Hirsts dutifully constructed a new fence along the surveyed line. The latest fence line blocked the Buddes' access to one side of the shop and a portion of the campground. The parties then disputed whether the Buddes adversely possessed the land between the true survey and the line where Martin Budde first saw the ribbons. We refer to this area as the disputed territory.

During a bench trial, Maureen Hirst testified that neighbors, other than the Hirsts and the Buddes, used the disputed territory for hiking, riding horses, and operating four-wheel vehicles. Hirst averred that she hiked and snow-shoed on the disputed land. Martin Budde testified that he had once constructed a zip line near another neighbor's property and then discovered that the zip line structure encroached on the neighbor's property line.

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Mark and Maureen Hirst filed suit against Martin and Kimberlyn Budde. The Hirsts alleged negligent trespass, intentional trespass, conversion, civil harassment, easement by prescription, easement by necessity, promissory estoppel, and unjust enrichment. The Buddes asserted counterclaims of adverse possession, mutual recognition and acquiescence, and estoppel. The Buddes asked the superior court to quiet title in the disputed territory in their name.

The parties attempted mediation without success. The Buddes moved for another session of court-ordered mediation. The court denied the motion on the insistence of the Hirsts that mediation would be unsuccessful.

At the conclusion of trial on March 12, 2019, the superior court rendered an oral ruling. The ruling granted Martin and Kimberlyn Budde's adverse possession claim to the disputed territory, awarded Mark and Maureen Hirst an easement across a southern road to access their property, and ordered the Hirsts to remove fencing on the property awarded to the Buddes. The court also dismissed the Hirsts' trespass claims. As part of the oral ruling, the superior court commanded a survey to create a legal description for the disputed territory quieted in Martin and Kimberlyn Budde.

During a presentment hearing on May 7, 2019, the superior court entered an order that awarded the disputed territory to Martin and Kimberlyn Budde and generally identified the area for purposes of a survey, awarded to them. The order read:

4.1.It is hereby ORDERED, ADJUDGED and DECREED that the Buddes are awarded title to the disputed lands as such may be determined by land survey in substantial conformity with the court's findings and conclusions herein, and with reference to the attached Exhibit "A"; the legal description of the parties' adjusted property boundaries and the parties' adjusted common property boundary line to be added by supplemental order of the court following completion of a new survey.
4.2.It is hereby ORDERED, ADJUDGED and DECREED that the property be re-surveyed to include a cutoff from just below the gravel road, or "Loop Road", and travel out far enough to include the RV campground area and the "bench area' that was claimed in adverse possession by the Buddes. The new line will travel up that portion to the end of the property and will run far enough to the east to match up with the area that "narrows" between the trees where Maureen's Meadow was accessed. The new property line will run between the "Loop Road" (gravel road) and the existing "Logging Road", as indicated on the attached Exhibit "A".

CP at 147-48. Exhibit A is the diagram we copy at the end of our factual narrative.

A proposed order prepared by Martin and Kimberlyn Budde included a paragraph concerning attorney fees that declared:

4.7. The court retains jurisdiction to consider all questions relating to an award of attorneys' fees and litigation-related costs.

CP at 122. During the May 7 presentment hearing, Mark and Maureen Hirst objected to paragraph 4.7 because the superior court had not mentioned an award of fees during its oral ruling. The superior court then struck section 4.7 from the signed order. The superior court commented:

I did cross off on the last page, though, 4.7, and I'll await further motions if there's an issue, okay?

Report of Proceedings (RP) (May 7, 2019) at 5.

At a hearing on May 17, 2019, the superior court accepted Martin and Kimberlyn Budde's offer to pay the entire cost of the survey to be completed by their chosen surveyor, Jim Main. The court told the parties to return with any disputes arising from the survey.

During the May 17 hearing, the trial court remarked:

as of today, the Court believes . . . that now it's just clean up of what the judgment is, your time for appealing has started. So we don't have to wait until the survey is done and all of that. The Court made the ruling. So the appeal time would start.

RP (May 17, 2019) at 28.

On May 16, 2019, Mark and Maureen Hirst appealed from the May 8, 2019 order and judgment. Notice of appeal, No. 36827-1-III (Wash.Ct.App. May 16, 2019). The notice of appeal began a convoluted process of activity in both this court of appeals and the superior court. We detail this process because of its relevance to the question of the timeliness of Martin and Kimberlyn Budde's request to the superior court for an award of reasonable attorney fees and costs.

On June 5, 2019, The Hirsts also filed, in the superior court, a motion to stay superior court proceedings. The superior court stayed any enforcement of its orders pending appeal but instructed the parties to continue to survey the disputed property.

On June 27, 2019, Martin and Kimberlyn Budde filed a notice of presentment proposing that the superior court adopt Jim Main's completed survey and quiet title to the land described in the survey. On August 30, 2019, the superior court conducted a hearing with Main as a witness and allowed both parties to examine the surveyor. Mark and Maureen Hirst argued that the surveyor had awarded excessive land north of the...

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