Sessions v. Henderson, 78825-6-I

CourtCourt of Appeals of Washington
PartiesSEAN SESSIONS, a single individual, Respondent, v. CLARESE B. HENDERSON; ELIZABETH A. MITCHELL and SCOTT H. MITCHELL, husband and wife; ERIC ZAHL; and all other persons, or parties unknown claiming any right, title, estate, lien or interest in the real estate described in the complaint herein, Appellants.
Docket NumberNo. 78825-6-I,78825-6-I
Decision Date18 November 2019

SEAN SESSIONS, a single individual, Respondent,
and SCOTT H. MITCHELL, husband and wife; ERIC ZAHL;
and all other persons, or parties unknown claiming any right, title,
estate, lien or interest in the real estate described in the complaint herein, Appellants.

No. 78825-6-I


November 18, 2019


APPELWICK, J. — This is an adverse possession case involving a narrow strip of land between two residential lots in Seattle. The dispute arose after Eric Zahl removed a chain link fence and vegetation from the area in question over the vehement objection of Sean Sessions, the adjacent owner. Sessions sued Eric Zahl and Clarese Zahl1 to quiet title to the disputed area based on adverse possession and for damages based on trespass. The trial court denied the Zahls' motion for summary judgment and Sessions's motion for partial summary judgment. Following a bench trial, the court quieted title to Sessions. The court also awarded treble damages for the loss of trees and shrubs under the timber trespass statute, and attorney fees and costs under the adverse possession

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statute. We affirm the court's rulings quieting title to the disputed land and awarding treble damages to Sessions. We remand to the trial court for entry of findings of fact and conclusions of law with respect to the reasonable amount of such fees.


This property dispute involves a narrow strip of land running from north to south between adjacent lots in Seattle. The Zahls reside at the property located at 3951 South Orcas Street, and Sessions resides at the property located at 3955 South Orcas Street in Seattle. The properties share a 103 foot common boundary on the east side of the Zahl property and the west side of the Sessions property. At the time the Zahls purchased their property, there was a six foot chain link fence around their entire property, with a gate. The portion of the chain link fence between the Zahl and Session properties had been present in the same location since at least 1996. Large trees and shrubs grew in the disputed area along Sessions' side of the fence.

Clarese Zahl and her parents purchased the 3951 South Orcas Street property from the John Williams Estate in July 2009.2 Sessions purchased the 3955 Orcas Street property from Coulter Smith in December 2013. Smith purchased the property in September 2005 from Thong Tra and his wife, and resided there until selling it to Sessions. Tra's parents purchased the property in 1996 and resided there until 2003, at which time they deeded the property to their son Thong.

The chain link fence between the properties was present when the Tra family purchased the property in 1996. At that time, Thong Tra was away at college. When Tra

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first saw the house in the summer of 1996, there were little shrubs planted along the fence which grew bigger over time. Tra lived there with his parents during the summer of 1996 and 1997, and full time from 1998 through 2000, when he got married and moved out. When Tra was not living at the property, he visited his parents regularly. Tra leased the property from 2003 through 2005. Tra's tenants were responsible for mowing the lawn and caring for the shrubs as per the terms of the lease. No evidence was presented by Zahl that anyone other than the Tra family or Tra's tenants maintained the property between 1996 and 2005.

The Zahls and Smith got along well. Eric Zahl did not know exactly where the boundary line was. But, there were visual clues that led him to suspect the fence probably was not the property line, including the location of the power line and the garage. Zahl told Smith he thought the property line was somewhere in the hedge. According to Smith, Zahl routinely assisted him in maintaining the vegetation around both sides of the fence. Smith did not know the exact location of the property line. Smith stated that he never regarded the fence as the property line and did not treat it as his own property. Smith never discussed the property line with the previous owner of the Zahls' property.

In contrast, Sessions believed the chain link fence was the boundary between his property and that of the Zahls. When Smith sold the property to Sessions in 2013, he completed a seller disclosure statement in which he stated there were no encroachments, boundary agreements, or boundary disputes. Sessions stated that he did extensive landscaping in the disputed area without a word from Eric Zahl about trespassing or permission. In December 2015, Sessions and Zahl agreed to remove a portion of chain link fence and ivy on the east side of the Zalhs' garage to abate a rat colony. Zahl

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provided tools and materials, and Sessions did the work. There was no discussion regarding boundary disputes at that time.

In February 2016, the Zahls had their property surveyed. The surveyed boundary line between the Zahl and Sessions properties was several feet east of the chain link fence. According to Clarese Zahl, Sessions did not express concern at that time about the location of the surveyed boundary line with respect to the vegetation.

On March 9, 2017, Zahl sent a text message to Sessions stating that he intended to install a wood fence with a gate between the two properties. Sessions responded by asking if he intended to place the new fence along the existing line of the chain link fence or along the survey line. Sessions said he would help with the fence if it were along the existing line, but that he would object and file a lawsuit if Zahl intended to place it along the survey line. Sessions also told Zahl he did not want a gate between the properties. The following day, over Smith's strenuous objection, Zahl removed the chain link fence and removed or damaged the trees and shrubs growing the disputed area.

On June 5, 2017, Sessions filed an amended complaint to quiet title in King County Superior Court. The complaint alleged that Sessions acquired title to the narrow strip that lay east of the chain link fence by adverse possession. The complaint further alleged that Zahl's wrongful actions, including removing the fence, trees, and shrubs, constituted common law trespass, statutory trespass pursuant to RCW 4.24.630(1), and statutory timber trespass pursuant to RCW 64.12.030, entitling him to treble damages for the intentionally destroyed trees and shrubs.

On September 25, 2017, the Zahls moved for summary judgment dismissal of Sessions' adverse possession claim and for dismissal of his trespass claim pursuant to

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CR 12(b)(6) or CR 56. Zahl argued that Sessions was unable to establish a prima facie case of adverse possession and Zahl could not be held liable for removing a fence and vegetation from their own property.

On October 13, 2017, Sessions moved for partial summary judgment quieting title in his favor. Sessions argued that title to the disputed strip had passed by adverse possession prior to the purchase by Smith. He further asserted that the Zahls' motion for summary judgment should be denied due to disputed issues of material fact regarding adverse possession.

On November 20 2017, the trial court denied the Zahls' motion for summary judgment, and the case proceeded to a bench trial. On May 30, 2018, the court quieted title in Sessions based on adverse possession. Although the record contains no written findings of fact or conclusions of law, the court articulated the basis of its decision in a lengthy oral ruling. The court ruled that (1) the elements of adverse possession were met before the Zahls purchased the property in 2009 and (2) Zahl's removal of trees in the disputed strip was trespass. The court reserved ruling on the amount of damages and attorney fees. On July 20, 2018, the court ruled that the Zahls were liable to Sessions for treble damages under the timber trespass statute. In so ruling, the court specified that the damage was intentional. The court also awarded attorney fees to Sessions in the full amount requested.

On July 24, 2018, the court issued an amended judgment and order quieting title in Sessions and ordering the Zahls to pay Sessions $18,995.25 in compensation for the damaged landscaping and $19,647.92 in attorney fees and costs. The court denied the Zahls' motion for reconsideration. The Zahls appeal.

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I. Adverse Possession

A. Standard of Review

"'[A]dverse possession is a mixed question of law and fact.'" Chaplin v. Sanders, 100 Wn.2d 853, 863, 676 P.2d 431 (1984) (alteration in original) (quoting Peeples v. Port of Bellingham, 93 Wn.2d 766, 771, 613 P.2d 1128 (1980)). Whether adverse possession has been established by the facts as found by the trial court is a question of law reviewed de novo. Happy Bunch, LLC v. Grandview North, LLC, 142 Wn. App. 81, 88, 173 P.3d 959 (2007). "Factual findings will be disturbed on appeal only when they are not sustained by the record." Anderson v. Hudak, 80 Wn. App. 398, 402, 907 P.2d 305 (1995).

The Zahls argue that Sessions failed to bear his initial burden on summary judgment to provide evidence establishing each element of his underlying claims or raising a disputed issue of material fact. In particular, they assert that the mere presence of a fence is not enough to create an issue of fact. However, "[a]fter a trial on the merits, we will not review a trial court's denial of a motion for summary judgment if the denial was based on the presence of material disputed facts." Lopez v. Reynoso, 129 Wn. App. 165, 174, 118 P.3d 398 (2005) (citing Herring v. Dep't of Soc. & Health Servs., 81 Wn. App. 1, 14, 914 P.2d 67 (1996)); Johnson v. Rothstein, 52 Wn. App. 303, 304, 759 P.2d 471 (1988).

To establish a claim of adverse possession, the claimant must prove that the claimant's possession is (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). These...

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