Workman v. Klinkenberg, 77105-1-I

• Decision Date: 03 December 2018
• Docket Number: No. 77105-1-I,77105-1-I
• Citation: 430 P.3d 716
• Parties: Joseph WORKMAN, Trustee, WCT Trust, a Washington Trust, Appellant, v. Jerald F. KLINKENBERG and Sandra Lee Klinkenburg, Husband and Wife; and Citibank, or its Successors and/or Assigns, Respondents.
• Court: Washington Court of Appeals

430 P.3d 716

Joseph WORKMAN, Trustee, WCT Trust, a Washington Trust, Appellant,

v.Jerald F. KLINKENBERG and Sandra Lee Klinkenburg,^† Husband and Wife; and Citibank, or its Successors and/or Assigns, Respondents.

No. 77105-1-I

Court of Appeals of Washington, Division 1.

FILED: December 3, 2018

Thomas L. Hause, Gourley Law Group, PO Box 1091, 1002 Tenth St., Snohomish, WA, 98291-1091, for Appellant.

Athan Emmanuel Tramountanas, Brian Epley, Ogden Murphy Wallace, PLLC, 901 5th Ave. Ste. 3500, Seattle, WA, 98164-2059, Valerie In-Hwa Holder, Keesal, Young & Logan, 1301 5th Ave. Ste. 3100, Seattle, WA, 98101-2649, Melanie Lynne Ronen, Keesal, Young & Logan, 400 Oceangate Ste. 1400, Long Beach, CA, 90802-4325, for Respondents.

PUBLISHED OPINION

Smith, J.

¶ 1 Where use of another’s property begins as a neighborly accommodation, the party seeking a prescriptive easement must overcome the presumption that the use was permissive and must show when and how the use became adverse. Under Gamboa v. Clark, 183 Wash.2d 38, 348 P.3d 1214 (2015), in order to overcome the presumption of permissive use, a litigant must either demonstrate a use that was adverse and hostile to the rights of the opposing party or show that the opposing party indicated that an easement was granted. Because Joseph Workman¹ did not present evidence raising a genuine issue of material fact that either of these circumstances happened, summary judgment dismissal of his prescriptive easement claims was proper. Additionally, the trial court did not abuse its discretion in awarding the Klinkenbergs attorney fees. We affirm and also grant the Klinkenbergs their attorney fees on appeal.

FACTS

¶ 2 In the late 1970s and early 1980s, Carolyn and Marvel (Marv) Workman, together with Clarence and Patricia Young, owned lot 129 of the Whidbey Shores development on Whidbey Island. In July 1982, the Workmans purchased the lot next door (lot 130) and sold their interest in lot 129 but continued to use a patio and stairway on lot 129 as guests of the Youngs. In 1990 and 1991, the Workmans transferred their interest in lot 130 to WCT Trust.

¶ 3 In 1992, David McClinton purchased lot 129 through a trust. McClinton and Marv were business partners and close friends. In about 1994, they agreed that the patio and stairway on lot 129, between their respective decks, would be a shared recreational space. Together, they paid for and built a brick patio, fire pit, and railroad tie stairs descending to the concrete bulkhead (the disputed area).

¶ 4 When McClinton decided to sell lot 129, Marv requested that he have a "first crack" at trying to find a friend to buy it "because of ... the joint area" and in order to "kind of continue this open concept ... between the two properties." Clerk’s Papers (CP) at 359, 491.

¶ 5 In 1999, Marv’s friends, Jill and Lydell Knudson, decided to buy lot 129 with their family, Jerald and Sandra Lee Klinkenberg. When the Klinkenbergs bought lot 129, Lydell Knudson informed them "that the Workmans occasionally used the Lot 129 brick patio and fire pit, and asked whether [they] would permit that use to continue." CP at 817. They agreed to give the Workmans permission to use the area. In 2009, the Knudsons transferred their interest in lot 129 to the Klinkenbergs.

¶ 6 In 2013, Joseph, as trustee of WCT Trust, sent the Klinkenbergs a letter regarding the boundary and placement of a wooden planter box on the patio. In 2014, he sent another letter to the Klinkenbergs asking them to move the planter box "pending clarification of the property lines." CP at 842.

¶ 7 In 2015, Joseph, on behalf of the trust, filed a complaint in Island County Superior Court, alleging adverse possession, acquiescence, estoppel in pais, common grantor doctrine, and seeking adjustment of the boundary line. In October 2016, the Klinkenbergs moved for summary judgment to dismiss all four claims. Joseph amended his complaint to add claims for a prescriptive easement and easement by estoppel over the disputed area. At the hearing on summary judgment, the trial court summarily dismissed Joseph’s claims on adverse possession (with the exception of a small area encompassed by a railroad tie planter), estoppel in pais, acquiescence, and the common grantor doctrine because there was no genuine issue of material fact that the Workmans’ use of lot 129 was adverse rather than permissive. While not ruling on the added easement claims, the trial court did note that "it seems fairly obvious that these claims have no merit," especially in light of the Supreme Court’s recent decision on prescriptive easements in Gamboa. Report of Proceedings (RP) (Nov. 10, 2016) at 42. In that case, the Supreme Court held that there was no prescriptive easement where a presumption of permissive use existed and the claimant did not rebut that presumption by demonstrating a use that was adverse and hostile to the rights of the owners or that the owners granted the claimants an easement. Gamboa, 183 Wash.2d at 52, 348 P.3d 1214.

¶ 8 The Klinkenbergs, relying on Gamboa, moved for summary judgment, arguing that the Workmans’ use of the disputed area was permissive in its inception and permitted as a neighborly accommodation. They further argued that the Workmans did not make a distinct and positive assertion of a right hostile to their rights and that they did not give the Workmans an easement.

¶ 9 In opposition to summary judgment, Joseph argued that the agreement between Marv and McClinton created "an area for joint or common use." CP at 450. In doing so, he cited McClinton’s declaration, McClinton’s deposition, and Andrew Workman’s deposition. The trial court granted the Klinkenbergs’ motion for summary judgment, explaining that "there is no evidence that any such agreement was intended to be a permanent, irrevocable right to use the disputed area." RP (Apr. 28, 2017) at 64.

¶ 10 Joseph moved for reconsideration, arguing that McClinton’s testimony as to McClinton’s agreement with Marv inferred that their agreement was intended to be permanent when viewed in the light most favorable to Joseph. In doing so, he cited a new declaration by McClinton that stated the "agreement was continuing and permanent" and that they "would never have invested the substantial amounts of money, time and effort to construct the patio, fire pit, and stairs for an agreement for temporary use." CP at 195. On the Klinkenbergs’ motion, the trial court struck this declaration because it was not newly discovered evidence. The trial court also denied Joseph’s motion for reconsideration. In doing so, it entered a very detailed memorandum decision that outlined its evidentiary rulings and thoroughly explained its ultimate decision. The court concluded that "it would not be reasonable to construe McClinton’s general reference to ‘an agreement’ with [Marv] Workman to use the disputed area as giving [Marv] Workman a permanent, irrevocable right to use the disputed area." CP at 160.

¶ 11 The Klinkenbergs then moved for an award of attorney fees and expenses. The trial court issued detailed findings and conclusions in support of its award of attorney fees, which totaled $131,749, and entered judgment in the same amount.

¶ 12 Joseph appeals.

ANALYSIS

Prescriptive Easement

¶ 13 Joseph argues that the trial court erred in concluding that there is no genuine issue of material fact whether a prescriptive easement exists over lot 129. We disagree.

¶ 14 We review summary judgment orders de novo. Keck v. Collins, 184 Wash.2d 358, 370, 357 P.3d 1080 (2015). "[S]ummary judgment is appropriate where there is ‘no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ " Elcon Constr., Inc. v. E. Wash. Univ., 174 Wash.2d 157, 164, 273 P.3d 965 (2012) (alteration in original) (quoting CR 56(c) ). Although the evidence is viewed in the light most favorable to the nonmoving party, if that party is the plaintiff and he fails to make a factual showing sufficient to establish an element essential to his case, summary judgment is warranted. Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). Once the moving party shows there are no genuine issues of material fact, the nonmoving party must bring forth specific facts to rebut the moving party’s contentions. Elcon Const., Inc., 174 Wash.2d at 169, 273 P.3d 965.

¶ 15 Additionally, we review a decision on reconsideration for abuse of discretion. In re Marriage of Littlefield, 133 Wash.2d 39, 46, 940 P.2d 1362 (1997). The trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons. King County v. Vinci Constr. Grands Projets/Parsons RCI/Frontier-Kemper, JV, 188 Wash.2d 618, 632, 398 P.3d 1093 (2017).

¶ 16 Prescriptive rights are not favored in the law because they necessarily work corresponding losses or forfeitures of the rights of other persons. Gamboa, 183 Wash.2d at 43, 348 P.3d 1214 (citing Nw. Cities Gas Co. v. W. Fuel Co., 13 Wash.2d 75, 85, 123 P.2d 771 (1942) ). "To establish a prescriptive easement, the person claiming the easement must use another person’s land for a period of 10 years and show that (1) he or she used the land in an ‘open’ and ‘notorious’ manner, (2) the use was ‘continuous’ or ‘uninterrupted,’ (3) the use occurred over ‘a uniform route,’ (4) the use was ‘adverse’ to the landowner, and (5) the use occurred ‘with the knowledge of such owner at a time when he was able in law to assert and enforce his rights.’ " Id. (citing Nw. Cities, 13 Wash.2d at 83, 85, 123 P.2d 771 ). "For a claimant to show that land use is ‘adverse and hostile to the rights of the owner’ in this context, the claimant must put forth evidence that he or she interfered with the owner’s use of the land in some manner." Id. at 52, 348 P.3d 1214 (citing Nw. Cities, 13 Wash.2d at 90-91, 123 P.2d 771 ). "The claimant bears the burden of proving the elements of a prescriptive easement." Id. at 43, 348 P.3d 1214...