Karlberg v. Otten

• Citation: 167 Wash.App. 522,280 P.3d 1123
• Decision Date: 02 April 2012
• Docket Number: Nos. 64595–1–I, 66050–1–I, 66051–9–I.,s. 64595–1–I, 66050–1–I, 66051–9–I.
• Parties: Gary F. KARLBERG and Sharon Karlberg, a married couple, Respondents, v. Steven L. OTTEN, a single man, Appellant.
• Court: Court of Appeals of Washington

167 Wash.App. 522

280 P.3d 1123

Gary F. KARLBERG and Sharon Karlberg, a married couple, Respondents,

v.Steven L. OTTEN, a single man, Appellant.

Nos. 64595–1–I, 66050–1–I, 66051–9–I.

Court of Appeals of Washington, Division 1.

April 2, 2012.

Richard Allen Davis, III, Chmelik, Sitkin & Davis, Seth Ananda Woolson, Attorney at Law, Bellingham, WA, for Appellant.

John C. Belcher, Belcher Swanson Law Firm PLLC, Bellingham, WA, for Respondents.

BECKER, J.

[167 Wash.App. 525]¶ 1 This appeal arises from two successive judgments quieting title. In his first action, plaintiff Karlberg sought and obtained a judgment placing the new boundary line between his property and defendant Otten's about halfway between the surveyed line and an old fence. In his second action, he sought and obtained a judgment establishing the fence as the boundary line. Concluding that res judicata barred the splitting of the claim, we reverse the second judgment and leave the boundary line as established by the first judgment.

FACTS

¶ 2 According to unchallenged findings of fact entered after the first trial, the old fence in question was recognized from at least the early 1940s as the boundary between two neighboring properties in the countryside near Bellingham. ¹ Respondent Gary Karlberg bought the western property in 1975. He constructed a shop building about 80 feet west of the fence.

¶ 3 A survey done in 1994 at the request of the owners of the eastern property showed the property line between the two properties was actually 82 feet west of the fence. It ran through Karlberg's shop and cut across the driveway leading to the shop.

¶ 4 Appellant Steven Otten became the owner of the eastern property in 1996. A few incidents of conflict were reported to the sheriff at this time as a result of some efforts by Otten to interfere with Karlberg's use of the land between the survey line and the fence.

¶ 5 Beginning in 2003, Otten renewed his challenge to Karlberg's occupancy of the land east of the survey line. He moved junk cars onto it and painted rings around the trees. One year, Otten strung barbed wire along part of the surveyed line behind the shop. In January 2008, he cut down an ornamental tree next to the paved driveway and removed a gatepost, damaging the driveway.

¶ 6 Karlberg sued Otten in February 2008, seeking to quiet title to a 45 foot wide strip east of the surveyed line—in other words, to establish the boundary about halfway to the fence.² He alleged that he had acquired title to the strip by adverse possession, mutual recognition, or acquiescence and had continually used and maintained it. He referred to the 45 foot strip as “the Disputed Area.” He particularly alleged, “The true eastern boundary of the Karlberg parcel is located 45' to the east of the 1994 survey line.” ³ Otten answered by denying most allegations. By way of affirmative defense, he asserted the survey line as the boundary, alleged that Karlberg's occupation was permissive, and denied that Karlberg had ever maintained or improved the area up to the fence. Otten added a counterclaim for trespass damages and sought an injunction to compel removal of Karlberg's encroachments.⁴

¶ 7 Before trial, Otten moved to amend his answer to add a counterclaim for adverse possession. The trial court denied the motion. On October 23, 2009, Otten filed a separate quiet title action against Karlberg.⁵

[167 Wash.App. 527]¶ 8 After a four day bench trial, the court ruled that the facts proved by Karlberg showed that he had acquired title all the way up to the fence either through mutual recognition and acquiescence and adverse possession by his predecessors in title or through his own adverse possession from 1975 to 1994.⁶ But Karlberg's complaint had asked to quiet title only to the western 45 feet, the strip referred to by Karlberg as “the Disputed Area.” Accordingly, the court concluded that Karlberg's title should be quieted only in that portion. Conclusion of Law 6 states: “Plaintiffs' east boundary is the Fence. However, since plaintiffs' complaint prays only to quiet title to the 45' strip east of the surveyed line, title should be quieted to only this area.” ⁷ Judgment was entered in the first lawsuit on November 20, 2009, quieting title in Karlberg to the western 45 foot strip and ejecting Otten from it.

¶ 9 On December 29, 2009, Karlberg filed another quiet title action against Otten.⁸ He alleged that Otten had now moved the junk cars farther east, so they were not on the 45 foot strip that had just been awarded to Karlberg but were still west of the fence. In this action, Karlberg sought to quiet title to the remaining area between the 45 foot strip and the fence and to eject Otten and his cars from that area as well.

¶ 10 Both parties moved for summary judgment in the two pending cases. Karlberg's position was that the findings and conclusions in the first action preclusively established his title up to the fence. Otten's position was that the judgment in the first action precluded Karlberg from moving the boundary again, but that Otten's case should proceed because it concerned property west of the survey line that was not discussed in the first action. On August [167 Wash.App. 528]13, 2010, the trial court granted Karlberg's motion. Title was quieted in Karlberg to the area west of the fence, and the legal descriptions for the Karlberg and Otten properties were modified to show the fence as the new boundary line. The court issued a separate order dismissing Otten's complaint.⁹

¶ 11 Otten appeals from both judgments for Karlberg. He also appeals the dismissal of his own lawsuit.

OTTEN'S CHALLENGE TO KARLBERG'S FIRST JUDGMENT

¶ 12 Otten moved to amend his answer to Karlberg's first lawsuit by adding a counterclaim to the effect that if the area up to the fence had ever become part of the Karlberg property by adverse possession, then Otten had reacquired it, except for the area immediately surrounding the shop building, by his own adverse possession for more than 10 years. The trial court denied the motion to amend. Otten assigns error to this ruling. He contends the judgment must be reversed and a new trial granted in which his own claim of adverse possession can be considered along with Karlberg's.

¶ 13 In answer to Karlberg's complaint of February 2008, Otten alleged that the surveyed line, not the fence, was the true boundary. He claimed that his predecessors in title had granted permission to Karlberg to leave his shop building where it stood, that they had never recognized the fence as the boundary, and that his own haying activities in the area west of the fence had prevented Karlberg from establishing continuous and exclusive use of that land. He counterclaimed against Karlberg for ejectment and trespass damages. He did not explicitly allege that his own title had been acquired through adverse possession.

¶ 14 On June 2, 2008, the trial court set discovery deadlines. The discovery cutoff date was 30 days before trial. Trial was set for November 4, 2008, making the discovery cutoff October 5, 2008. The order stated that if the trial date was continued, deadlines related to the original trial date would remain unchanged.

¶ 15 After two continuances, the trial was rescheduled for October 27, 2009.

¶ 16 On October 1, 2009, Otten filed the motion to amend his answer to add a counterclaim of adverse possession. Karlberg objected that the discovery deadline had passed and the case had already been continued twice. Otten replied there was no prejudice because no new witnesses would need to be called and the facts supporting his own claim of adverse possession would be the same as those he was relying on to defeat Karlberg's claim of adverse possession. The court denied the motion on October 16, 2009.

¶ 17 Leave to amend is to be “freely given when justice so requires.” CR 15(a). We review a trial court's denial of a motion to amend for an abuse of discretion. The touchstone for the denial of a motion to amend is the prejudice such an amendment would cause to the nonmoving party. Donald B. Murphy Contractors, Inc. v. King County, 112 Wash.App. 192, 199, 49 P.3d 912 (2002). In determining whether prejudice would result, a court can consider potential delay, unfair surprise, or the introduction of remote issues. Kirkham v. Smith, 106 Wash.App. 177, 181, 23 P.3d 10 (2001).

¶ 18 Where a new claim can be litigated with the same evidence that is already in the case, it may be proper for a trial court to allow an amendment even when the motion to amend is made shortly before trial. In Kirkham, for example, the defendant moved to add a counterclaim three weeks before trial for violation of a statute. Kirkham, 106 Wash.App. at 180, 23 P.3d 10. Concluding that the counterclaim required essentially the same proof as the allegations in an existing counterclaim for misrepresentation, the trial court determined there was no prejudice and allowed the amendment. We upheld the decision to allow the amendment as a proper exercise of the trial court's discretion. Kirkham, 106 Wash.App. at 181, 23 P.3d 10.

¶ 19 Unlike in Kirkham, Otten's proposed counterclaim could not fairly be litigated using only the evidence pertaining to the claims already in the case. Karlberg was prepared to prove he had acquired title to the 45 foot strip by continuous and exclusive use over many years before 1994. Otten was now proposing to argue that if so, Otten had repossessed it by his own continuous and exclusive activities after 1994. Otten's theory was new. To defend against it, Karlberg would have to focus on Otten's activities after 1994. With only two weeks remaining before trial and no time for another round of discovery, it was unfair to put Karlberg in this position. Thus, Otten's motion to amend was untimely. We conclude the trial court did not abuse its discretion by denying the motion to amend.

¶ 20 Alternatively, Otten argues that the motion to amend should have been granted...