                                                                           FILED 

                                                                         DEC 3, 2013 

                                                               In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


RUSSELL H. BENSCH and CELLIE D.              )
BENSCH,                                      )         No. 31149-0-111
                                             )
                     Respondents,            )
                                             )
       v.                                    )
                                             )         UNPUBLISHED OPINION
DON C. DIXON and PATRICIA E.                 )

BRITZA,                                      )

                                             )

                     Appellants.             )


       KORSMO, C.J.      The trial court granted summary judgment in this replevin case.

We conclude that whether or not the respondents abandoned the property at issue is a

factual question that needs to be decided at trial. Accordingly, we reverse the order

granting summary judgment and remand this case for trial.

                                         FACTS

       Respondents Russell and Cellie Bensch owned two adjoining 20 acre parcels that

have separate tax numbers. Their residence was located on one of the two parcels. The

couple refinanced their property with Countrywide Bank. The deed of trust covered both

properties, although respondents stated that they believed the deed only covered the

parcel containing the residence.
No. 31 I49-0-III
Bensch v. Dixon


       The Bensches defaulted on their obligation to Countrywide, and a nonjudicial deed

of trust foreclosure was commenced in May 20 10. The Bensches believed that the

foreclosure was only of the east parcel containing the house and that the west parcel

would still continue to belong to them. 1 The property was sold to Federal National

Mortgage Association pursuant to the Trustee's Sale on August 27, 20 IO. The Bensches

moved out of the house and moved some of their personal property to another location,

but left a substantial amount of personal property on the west 20 acres. The property was

then listed for sale by the foreclosing institution.

       Appellants Don Dixon and Patricia Britza examined the property before making

an offer on it. They observed that wires had been cut out of the electrical box, the vanity

had been pulled out of the bathroom and burned on the driveway, and the carpet had been

ripped out of the living room and removed. They also observed vehicles and heavy

equipment, a large garbage pile, old tires, 55 gallon oil barrels, and piles of metal on the

west parceL They believed the vehicles and equipment could be sold to help offset some

of the cost to clean-up the property and the building materials could be used on the

property. They then successfully purchased the entire 40 acre property.




       I The Bensches claim they believed they retained title as the vested owners of the
west parcel until November 2,2011, when the Trustee's Deed was recorded and they
learned the deed purported to transfer all 40 acres.

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No. 31149-0-111
Bensch v. Dixon


       They spent about $77,000 putting the house back in livable condition. Sometime

in December 2011, one of the workmen found an undated note from Mrs. Bensch asking

Ms. Britza for patience and time in allowing the Bensches to remove the "heavy, hard to

move" property from the land as they did not expect the west half of the 40 acres to sell

and explaining that they had been in North Dakota operating a trucking company and it

would take them two to three weeks, costing thousands of dollars in lost revenues, to

move the personal property off the land. Appellants did not allow the respondents back

onto the land to remove the personal property.

       On June 8, 2012, 22 months after the foreclosure sale, the Bensches filed a

replevin action against Mr. Dixon and Ms. Britza. The complaint alleged that the

personal property on the west parcel belonged to the Bensches and was not abandoned,

and that appellants had prevented the Bensches from recovering their property. Mr.

Dixon and Ms. Britza asserted multiple affirmative defenses, including abandonment,

estoppel, and laches.

       The Bensches moved for summary judgment. They contended they had not

abandoned the property due to their mistaken belief they still owned the land on which

they placed it. In response, Mr. Dixon and Ms. Britza claimed that the Bensches knew,

or should have known, that the bank was foreclosing on the entire property and that they

intended to abandon the property by leaving it there.




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No. 31149-0-111
Bensch v. Dixon


       On September 14,2012, the trial court granted summary judgment in favor of the

Bensches. An order granting possession of personal property and setting conditions was

entered on September 24,2012. Mr. Dixon and Ms. Britza timely appealed.

                                        ANALYSIS

       Appellants argue that a factual question exists concerning whether the property

was abandoned or not. We agree.

       This court reviews a summary judgment de novo, performing the same inquiry as

the trial court. Lybbert v. Grant County, 141 Wn.2d 29,34, 1 P.3d 1124 (2000). The

facts, and all reasonable inferences to be drawn from them, are viewed in the light most

favorable to the nonmoving party. Id. Ifthere is no genuine issue of material fact,

summary judgment will be granted if the moving party is entitled to judgment as a matter

of law. Id.

       The moving party bears the initial burden of establishing that it is entitled to

judgment because there are no disputed issues of material fact. Young v. Key Pharm.,

Inc., 112 Wn.2d 216,225,770 P.2d 182 (1989). When a party makes that initial

showing, then the burden shifts to the opposing party to establish there is a genuine issue

for the trier of fact. Id. at 225-26. The responding party may not rely on speculation or

having its own affidavits accepted at face value. Seven Gables Corp. v. MGMlUA Entm 't

Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Instead, it must put forth evidence showing the

existence of a triable issue. Id.

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No. 31149-0-111
Bensch v. Dixon


       "A replevin action is essentially one to determine title to, or right of possession of,

personal property." Apgar v. Great Am. Indem. Co., 171 Wash. 494, 498, 18 P.2d 46

(1933). The party bringing a replevin action must show:

               (a) That the plaintiff is the owner ofthe property or is lawfully
       entitled to the possession of the property by virtue of a special property
       interest ... ;
               (b) That the property is wrongfully detained by defendant;
               (c) That the property has not been taken for a tax, assessment, or fine
       pursuant to a statute and has not been seized under an execution or
       attachment against the property of the plaintiff, or if so seized, that it is by
       law exempt from such seizure; and
               (d) The approximate value of the property.

RCW 7.64.020(2). The plaintiff seeking replevin must be able to prevail on the_ strength

of her title or right, regardless of the defendant's title or right to possession. Crystal

Recreation, Inc. v. Seattle Ass 'n o/Credit Men, 34 Wn.2d 553, 558,209 P.2d 358 (1949).

       The general rule is that abandonment of chattel by the owner is a complete defense

to an action for conversion or replevin. See, e.g., 66 AM. JUR. 2D Replevin § 32 (2013),

18 AM. JUR. 2D Conversion § 102 (2013); Sanchez v. Forty's Texaco Servo Inc, 5 Conn.

App. 438, 499 A.2d 436 (1985). Although Washington courts have consistently

recognized abandonment as a defense to an action for conversion, there are no

Washington cases discussing abandonment as a defense to replevin. See, e.g., Jones           V.


Jacobson, 45 Wn.2d 265,273 P.2d 979 (1954) (noting that abandonment is a complete

defense to conversion). However, given that most jurisdictions recognize abandonment

as a defense to both replevin and conversion, that Washington courts uniformly recognize

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No. 31149-0-111
Bensch v. Dixon


abandonment as a complete defense to conversion, and the similarity between replevin

and conversion claims, 2 we believe abandonment also is a complete defense to replevin.

       Abandonment of a legal right is generally a question of fact. In re Trustee's Sale

ofReal Prop. ofBrown, 161 Wn. App. 412,415,250 P.3d 134 (2011). To successfully

assert abandonment as an affirmative defense, the party claiming abandonment must

show that the abandonment was both intentional and voluntary. See Ferris v. Blumhardt,

48 Wn.2d 395,402,293 P.2d 935 (1956). Abandonment must be proved by "clear,

unequivocal and decisive evidence." Shew v. Coon Bay Loafers, Inc., 76 Wn.2d 40,50,

455 P .2d 359 (1969). This court has upheld trial court determinations of abandonment

where a property owner with notice of the need to retrieve property failed to do so in a

timely manner even while claiming the property as his own. E.g., Excelsior Mortg.

Equity Fund II v. Schroeder, 171 Wn. App. 333,287 P.3d 21 (2012); Lamar Outdoor




        2 Replevin is an action seeking to recover personal property that is being
wrongfully detained by someone who is not the legal owner of the property. See Ray v.
Hill, 194 Wash. 321, 324, 77 P.2d 1009 (1938). Conversion occurs when someone
willfully interferes with any chattel, without lawful justification, and that interference
deprives a person entitled to possession of the property. Brown v. Brown, 157 Wn. App.
803,817,239 P.3d 602 (2010). Replevin and conversion are "concurrent remedies for a
wrongful taking of goods." 18 AM. JUR. 20 Conversion § 65 (2013). However, replevin
is usually an action to recover property, whereas conversion allows recovery of the value
of the property when recovery of the specific property is not possible. See 18 AM. JUR.
20 Conversion § 66 (2013).



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No. 31149-0-III
Bensch v. Dixon


Adver. v. Harwood, 162 Wn. App. 385, 254 P.3d 208 (2011); Quinn v. Cherry Lane Auto

Plaza, Inc., 153 Wn. App. 710,225 P.3d 266 (2009).

       Here, there was conflicting evidence regarding the abandonment issue. Although

respondents stress their confusion over whether both of their parcels were subject to

foreclosure, that issue was an irrelevancy at summary judgment because the evidence had

to be construed in a light most favorable to Mr. Dixon and Ms. Britza. Objectively

viewed, the evidence established that respondents had criminally3 damaged the house and

removed the personal property they desired to keep while piling up a large amount of

additional material on the land with the apparent intent to cause additional expense to the

mortgage holder. The passage of time also suggests that respondents had abandoned the

property. They had been away well over a year before even suggesting that they were

still interested in the property. Abandonment has been found in far shorter periods of

time even while claims of ownership were being asserted. E.g., Excelsior; Lamar; Quinn.

The facts here are even more favorable to the appellants than in those cases.

      There was sufficient evidence of abandonment to allow appellants their day in

court on the issue. Because the abandonment claim constituted an unresolved factual




      3 See State v. Wooten, No. 87855-2 (Wash. October 31,2013).

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No. 31 I 49-0-III
Bensch v. Dixon


question, summary judgment was improper. 4 Accordingly, we reverse and remand for

trial.

         Reversed and remanded.

         A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                          Korsmo, C.J.

WE CONCUR:




         Brown, J.




         4Although respondents did not use the chapter 7.64 RCW summary process, the
trial court did enter an order of immediate possession per that statute. The parties do not
discuss the propriety of this hybrid approach to the case.

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