Pendergrast v. Matichuk

Decision Date15 September 2016
Docket NumberNo. 92324–8,92324–8
Citation379 P.3d 96,186 Wash.2d 556
Parties Leslie M. Pendergrast, as an individual, Respondent, v. Robert Matichuk and Jane Doe Matichuck, as individuals and in their marital capacity; Blaine Properties L.L.C., a Washington State limited liability company, Petitioners, Bank of the Pacific, a Washington State corporation; Mark R. and Cynthia A. Sanford, as individuals and in their marital capacity; and Gina M. Lingenfelter and John Doe Lingenfilter, as individuals and in their marital capacity, Defendants.
CourtWashington Supreme Court

Bryan Donald Lane, Lane Law Firm PLLC, 114 W. Magnolia St., Ste. 400, Bellingham, WA, 98225–4380, for Petitioners.

Bryan Donald Lane, Lane Law Firm PLLC, 114 W. Magnolia St., Ste. 400, Bellingham, WA, 98225–4380, for Defendants.

Mark J. Lee, Brownlie Wolf & Lee LLP, 230 E. Champion St., Bellingham, WA, 98225–4548, for Respondent.


, J.

¶1 Leslie Pendergrast and Robert Matichuk bought adjacent lots separated by a solid wooden fence. The fence enclosed a venerable cherry tree on Pendergrast's lot. For several years, Pendergrast and Matichuk maintained their lots as if the fence was the boundary line between them. Unfortunately, the fence stood several feet from the deed line and, according to the legal description, on Matichuk's land. The cherry tree stood on the disputed part of Pendergrast's lot. Instead of suggesting mediation or arbitration or filing a quiet title suit, and over Pendergrast's strenuous objection and despite her tearful plea, Matichuk tore down the fence, built a new one on the deed line, and had the cherry tree cut down. Litigation ensued, and Pendergrast prevailed at summary judgment, at trial, and at the Court of Appeals. Matichuk claims the disputed land is his and if not, the jury gave Pendergrast too much relief. Finding no error, we affirm the Court of Appeals.


¶2 In 2006, Pendergrast and Matichuk bought separate lots in Blaine, Washington, from Tali and Cyrus Conine.1 Matichuk bought two lots (one with, a small house, one vacant), intending to build condominiums. Five months later, Pendergrast bought an adjoining lot that included a 1907 home she intended to turn into a bed-and-breakfast. Pendergrast, who had retired from a job as a nursing instructor after a car accident left her unable to safely handle medical equipment, hoped to use the bed-and-breakfast to generate income for herself and her disabled daughters.

¶3 At some point prior to either sale, a six-foot-tall, solid wooden fence was built, partially enclosing Pendergrast's parcel and separating her lot from the vacant parcel owned by Matichuk. The fence had been built about six to eight feet west of the deed line, enclosing the venerable cherry tree on the parcel with the 1907 home. The Conines' disclosure statement for the Pendergrast parcel asserted that there were no “encroachments, boundary agreements, or boundary disputes,” suggesting they believed the fence was on the property line. Clerk's Papers (CP) at 33. Consistently, the Pendergrast property was described in the listing agreement as partially fenced. Id. at 32. The record does not include similar documents from the Matichuk sale, but at oral argument, Matichuk conceded that the Conines represented to him that there were no encroachments on his parcel.

Wash. Supreme Court oral argument, Pendergrast v. Matichuk , No. 92324–8 (June 21, 2016) at 39 min., 16 sec., audio recording by TVW, Washington State's Public Affairs Network,

¶4 The record does include Matichuk's deposition testimony that he paced off the lot and “came to the conclusion the fence was not on the property line. Actually, let me rephrase that, I came to the conclusion I didn't know where the fence was in relation to the property line.” CP at 52. He testified he was not concerned about any discrepancy because he “was buying on the description of the property,” Id. at 53. Nothing in the record suggests he sought clarification about the relation between the fence and the deed line before buying the lot.

¶5 Meanwhile, Pendergrast planned a nautically themed bed-and-breakfast that would make use of the house, several outbuildings, and a tree fort in the cherry tree she planned to make look like the bow of a ship and use as a viewing station. At some point, she called Matichuk to ask him if he would consider selling one of his parcels to her. Nothing came of that conversation, and Matichuk did not use the occasion to alert Pendergrast that he was concerned the fence between their properties was misplaced. Over the next few years, she discussed her plans with the city and invested about $130,000 in remodeling the home. During those years, she used and maintained the property up to the fence line. From time to time, she would have casual conversations with. Matichuk. They never discussed the boundary line. Pendergrast's plans suffered a significant setback when a pipe on an upper floor burst, necessitating costly repairs.

¶6 In 2008, Matichuk had the property surveyed and determined that the legal description of his lot extended several feet beyond the fence into the lot Pendergrast had purchased. The next year, by letter, he informed Pendergrast that he had discovered that the fence encroached on his land and that he intended to move it to the deed line, much to her distress. Pendergrast believed her parcel extended to the fence line and that moving it would leave her with insufficient room to develop the bed and breakfast. Via counsel, she informed Matichuk that she claimed the property enclosed by the fence and instructed him not to move the fence. When the letter was unavailing, Pendergrast called Matichuk in tears and begged him not to move the fence. The day after that call, Matichuk had the fence torn down. Later, Matichuk cut down the cherry tree.

¶7 Pendergrast sued, seeking, among other things, to quiet title in the strip of land between the old fence line and the new one.

She also sought damages for trespass and timber trespass, including treble damages under the timber trespass statute, RCW 64.12.030

. Both parties moved for summary judgment. Nothing in the record before us suggests that Matichuk opposed Pendergrast's summary judgment motion on the grounds that a material question of fact was presented by his deposition testimony that he did not know where the fence was located in relation to the deed line. Instead, he contended that he was entitled to prevail at summary judgment because “there is absolutely no evidence that the common grantor ever established a boundary line different from, the deeded boundary,” “no evidence of any formal or specific agreement about the boundary,” and [no] evidence that the parties acted in a way after the sale to suggest, that they agreed that the fence was the boundary.” CP at 310–11, Judge Mura granted partial summary judgment in favor of Pendergrast in a brief order.

¶8 The parties went to trial on trespass and timber trespass. Pendergrast testified that she begged Matichuk not to move the fence, that she “felt violated,” that his actions left her in serious financial straits at a time when she was carrying both of her disabled daughters' mortgages, and that she could not sell the house while the lawsuit was pending. 2 Verbatim Report of Proceedings (Jan. 30, 2014) at 51. We have not been provided with Matichuk's testimony, The jury was instructed that damages for both trespass (removing the fence) and timber trespass (cutting the cherry tree) “include economic and non-economic loss that you find was proximately caused by the trespass and/or timber trespass,” and that if they found Matichuk committed either trespass, they should consider whether his actions caused Pendergrast emotional distress. CP at 196.

¶9 The jury found for Pendergrast. It awarded her $5,200 in economic and $75,000 in noneconomic damages for the trespass. It awarded her $3,310 in economic and $40,000 in noneconomic damages for the timber trespass. The trial judge tripled the timber trespass economic damages under RCW 64.12.030

and .040, but declined to triple the noneconomic ones “because such a trebling is not specifically provided in RCW 64.12.030, which, as a penal or punitive statute, should be interpreted and applied literally and narrowly.” Id. at 237. The judge also ordered equitable relief in the form of abatement of the trespass and the entry of new legal descriptions. Matichuk's motion for a new trial or reduction of noneconomic damages was denied.

¶10 Both sides appealed. The Court of Appeals largely affirmed. Pendergrast v. Matichuk , 189 Wash.App. 854, 355 P.3d 1210 (2015)

. It upheld the summary judgment ruling quieting title based on the common grantor award and declined to reduce the jury's award of noneconomic damages. Id. at 859, 355 P.3d 1210. However, it concluded that the plain language of the timber trespass statute required the court to treble the noneconomic damages found by the jury. Id. We granted review. 185 Wash.2d 1002, 366 P.3d 1243 (2016).



¶11 The quiet title action was decided on cross motions for summary judgment. We review summary judgment de novo. Becerra Becerra v. Expert Janitorial, LLC, 181 Wash.2d 186, 194, 332 P.3d 415 (2014)quoting Rivas v. Over l ake Hosp. Med. Ctr. , 164 Wash.2d 261, 266, 189 P.3d 753 (2008)


¶12 It has long been the law in Washington that [t]he location of a line by a common grantor is binding upon the grantees.” Turner v. Creech 58 Wash. 439, 443, 108 P. 1084 (1910)

(citing McGee v. Stone, 9 Cal. 600 (1858) ). A common grantor can “establish[ ] an ‘on the ground’ boundary line between” tracts of land sold to separate parties “that is binding on the common grantees,” even when the deed describes a different boundary. Thompson v. Bain , 28 Wash.2d 590, 593, 183 P.2d 785 (1947). In the opinion characterized by Washington Practice as best encapsulating the doctrine, the Court...

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