Ofuasia v. Smurr
| Decision Date | 14 March 2017 |
| Docket Number | No. 48145-6-II,48145-6-II |
| Citation | 392 P.3d 1148,198 Wash.App. 133 |
| Court | Washington Court of Appeals |
| Parties | Darlington OFUASIA and Alena Ofuasia, husband and wife, Appellants/Cross-Respondents v. Dana William SMURR, Steven and Lori Larson, Robert Mason, and Chuck Mason, Respondents/Cross-Appellants. |
Moloy K. Good, The Good Law Clinic, 211 E. 11th St., Ste. 104, Vancouver, WA, 98660-3248, for Appellants/Cross-Respondents.
Stephen Garrett Leatham, Heurlin Potter Et Al., 211 E. McLoughlin Blvd., Ste. 100, Vancouver, WA, 98663-3368, for Respondents/Cross-Appellants.
Melnick, J.¶1 Darlington and Alena Ofuasia appeal the trial court's order granting Dana Smurr's motion for partial summary judgment to dismiss the Ofuasias' trespass claims. Smurr cross-appeals the trial court's order granting the Ofuasias' motion for partial summary judgment on their adverse possession claim. We affirm the trial court on the adverse possession claim, reverse on the trespass claims, and remand for further proceedings.
FACTS
¶2 The Ofuasias' and Smurr's properties are part of a residential subdivision that includes a private road, NE 65th Street. Smurr's property is located across the private road, north of the Ofuasias' property. The private road is a non-exclusive easement running east-west. It is subject to a road maintenance agreement that requires property owners to not block the easement or unreasonably interfere with its use. The west end of the easement includes a turn-around area that borders the western boundary of the Ofuasias' property. The easement allows adjacent property owners to access and maintain the road.
¶3 In July 2005, the Ofuasias purchased their property from David Harris. Two years prior to the purchase, Harris built a chain link fence that ran along the property's western boundary. The fence encroached onto the turn-around area of the easement.
¶4 After the Ofuasias purchased the property, they built their house and landscaped the area between the west side of their garage and the chain link fence. Boulders were placed in front of the house near NE 65th Street as part of their landscaping efforts. They also planted arborvitae along the west side of their garage. Sometime thereafter, the Ofuasias removed a section of the chain link fence, from behind their garage to the property's southern boundary. They installed a wooden fence slightly east or "inside" of where the chain link fence had been. Clerk's Papers (CP) at 19. The Ofuasias left the metal posts from the chain link fence in the ground. They then removed the remaining chain link fence near their garage and arborvitae, leaving the metal fence posts. They continued to landscape and maintain the area up to the line created by the chain link fence.
¶5 In April 2013, pursuant to the road maintenance agreement, Smurr initiated an arbitration action and sent the Ofuasias a statement of claim. The parties, without lawyers, arbitrated the dispute before three arbitrators.
Smurr argued that the Ofuasias were in violation of the road maintenance agreement by installing boulders within the easement's boundaries and by installing a fence and planting shrubs within the turn-around area.
¶6 The arbitrators ruled that the boulders had to be removed and that the fence should be removed if encroachment was established by a proper survey paid for by Smurr. One of the arbitrators dissented from this conclusion, stating that the Ofuasias may own the property based on adverse possession because the wooden fence was built where the previous chain link fence existed. In response to an inquiry, one of the arbitrators sent an e-mail to the Ofuasias that clarified the decision. The e-mail stated that while removal of the boulders was required, the arbitrators did not require removal of the fence. It further explained that if Smurr obtained a survey and "the fence [was] in the right of way, then it MAY have to be removed, but, it may also be that adverse possession has occurred." CP at 150.
¶7 Approximately one week later, Smurr sent a letter to the Ofuasias informing them that he hired a surveyor and that the survey confirmed the true boundaries of the properties. Smurr wrote that, per the arbitrators' decision, once a survey confirmed the Ofuasias' west property boundary, they were required to remove any encumbrances they placed in the turn-around area. Smurr also stated that if the Ofuasias failed to remove the encumbrances within 30 days, he would remove them himself.
¶8 The Ofuasias hired a lawyer who wrote to the arbitrators, moving to change or clarify the arbitration decision pursuant to RCW 7.04A.200, .240. In their letter, the Ofuasias submitted that the evidence presented at arbitration established that the original fence was erected on or before January 23, 2003, and that they acquired the property at issue via adverse possession. Because the Ofuasias owned the property, they argued it was no longer subject to the road maintenance agreement. They also argued that, because the arbitrators' decision was incomplete as it referenced a survey which had not been completed, the arbitrators did not have authority to make a prospective decision based on evidence that was not before them. The Ofuasias served the letter to Smurr by personal delivery.
¶9 Two days later, one of the arbitrators replied to the letter, clarifying their decision. The letter stated, in relevant part:
There was evidence presented that the fence encroached into the "turn around" easement. Although the fence may have existed since 2003 the issue of adverse possession was not fully developed . We were unsure about the exact location of the property line. A survey would have been helpful to determine where the fence was actually located and our comment in that regard was simply a suggestion . We did not intend to foreclose the possibility that Mr. Ofuasia could in a proper forum plead and establish the necessary elements of adverse possession. The three arbitrators have communicated via email and concur with the above statements.
CP at 27 (underline in original) (emphasis added).
¶10 The Ofuasias then replied to Smurr's earlier letter. They stated that, through adverse possession, they acquired the land where the fence sat and the land inside the fence. They enclosed the arbitrator's letter that clarified the decision. The Ofuasias stated that they did not need to establish ownership of the land, but they had that remedy available to them if necessary. Should Smurr damage, destroy, or remove the fence, they warned that he would be committing trespass and may be held liable. One week later, Smurr removed the Ofuasias' fence and cut down the arborvitae trees.
¶11 On August 13, the Ofuasias filed suit for statutory1 and common law trespass and to quiet title. They alleged that they owned the land in dispute by adverse possession and that they were entitled to damages because of Smurr's interference and damage to their land, fence, trees, and landscaping. Smurr answered, arguing that, per the arbitrators' decision, he obtained a survey and was permitted to remove the fence. He also asserted that the Ofuasias' claims were precluded because they were litigated to a final determination at arbitration.
¶12 The Ofuasias filed a motion for partial summary judgment regarding their adverse possession and trespass claims. Smurr responded to the motion, arguing that material issues of fact existed as to both claims, that the Ofuasias could not "tack" Harris' years of ownership to theirs, and that the Ofuasias could not meet the hostility element of adverse possession. CP at 115. He asserted that the Ofuasias moved out of their house for two and a half years and renters occupied their home during that time. He also asserted that Harris installed the chain link fence as a barrier to keep school children from crossing through the property, not as a boundary marker.
¶13 The trial court entered an order granting the Ofuasias' motion for partial summary judgment as to the adverse possession claim. The court found no disputed issues of material fact existed and that the Ofuasias established the elements of adverse possession regarding the tract of land at issue. The court also stated that the order was a final judgment on the Ofuasias' adverse possession claim. Regarding the trespass claims, the clerk's minutes stated, "Trespass motion was not ruled upon—denied at this time, Court advises parties may further address this issue ... can submit a motion for reconsideration on this issue." CP at 124.
¶14 The Ofuasias moved for reconsideration on their trespass claims. They argued that Smurr did not deny he intentionally removed the fence, arborvitae, and landscaping, and he essentially conceded that if adverse possession was found, liability for trespass logically followed. Because the court found that they acquired the disputed property by adverse possession, the Ofuasias argued that there were no material issues of fact as to whether Smurr trespassed by removing their fence and arborvitae. The court denied the motion.
¶15 Smurr subsequently filed a motion for partial summary judgment to dismiss the Ofuasias' trespass claims. The trial court entered an order granting the motion.
¶16 The Ofuasias appeal the order granting Smurr's motion for partial summary judgment dismissing their trespass claims. Smurr cross-appeals, seeking review of the order granting the Ofuasias' partial summary judgment on their adverse possession claim.
ANALYSIS
¶17 We review an order granting summary judgment de novo, engaging in the same inquiry as the trial court. Loeffelholz v. Univ. of Wash. , 175 Wash.2d 264, 271, 285 P.3d 854 (2012). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to...
To continue reading
Request your trial
-
Beres v. United States
...into an original title.").Gorman v. City of Woodinville, 283 P.3d 1082, 1083 (Wash. 2012) (en banc); see also Ofuasia v. Smurr, 392 P.3d 1148, 1157 (Wash. Ct. App. 2017) ("[T]itle automatically vests in an adverse possession claimant when the requirements of adverse possession have been sat......
-
Lavington v. Hillier
...Lotus Enterprises , have stated that the fourth element of trespass is actual and substantial damages . See Ofuasia v. Smurr , 198 Wash. App. 133, 149, 392 P.3d 1148 (2017) ; Hurley v. Port Blakely Tree Farms L.P. , 182 Wash. App. 753, 772, 332 P.3d 469 (2014).¶ 53 In addition, as stated ab......
-
Little Butte Prop. Owners Water Ass'n v. Bradley
...to the land, and (3) wrongfully injuring personal property or real estate improvements on the land." Ofuasia v. Smurr , 198 Wash. App. 133, 147, 392 P.3d 1148 (Wash. App. Div. 2, 2017) (quoting Clipse v. Michels Pipeline Constr., Inc. , 154 Wash. App. 573, 225 P.3d 492 (Wash. App. Div. 1, 2......
-
Skamania Cnty. v. Patton
...act would disturb the plaintiff's possessory interest, and (4) actual and substantial damages.'" Ofuasia v. Smurr, 198 Wn.App. 133, 149, 392 P.3d 1148 (2017) (internal quotation marks omitted) (quoting Grundy v. Brack Family Tr., 151 Wn.App. 557, 567, 213 P.3d 619 (2009)). Intent" 'denote[s......