                                                                           FILED
                                                                         JUNE 9, 2016
                                                                 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

LARRY B. JUDD, and CHERYLL L.                 )
JUDD, a marital community; and                )         No. 33060-5-111
CHRISTOPHER L. JUDD, a married                )
individual,                                   )
                                              )
                     Appellants,              )
                                              )         UNPUBLISHED OPINION
       v.                                     )
                                              )
RON JOHNS, and SUZANNE JOHNS, a               )
marital community; and JAY HEALY, a           )
single individual,                            )
                                              )
                     Respondents.             )

       SIDDOWAY, C.J. - Larry, Cheryll and Christopher Judd sued to quiet title to the

western 50 feet of property to which they hold record title. Instead, following a bench

trial, the trial court quieted title in Ron and Suzanne Johns and Jay Healy, the Judds'

neighbors to the west. The Judds assign error to only the trial court's conclusions oflaw.

We find no error and affirm.
No. 33060-5-111
Judd v. Johns


                            FACTS AND PROCEDURAL BACKGROUND

       In dispute is a 50-foot strip ofland that runs north and south between the

properties of Jay Healy and Ronald and Suzanne Johns, on the one hand, and the Judds,

on the other. The following illustration from the parties' briefing in the trial court is

helpful; the disputed area falls between the surveyed boundary line on the west, and an

historic fence on the east:

                                                 N




                          Healy
                                               \t[:
                                                 >
                                       1971    lZ
        w                                        0,
                                                      Judd          E

                                                I
                         Johns                   i           1999
                                       2006      .
                                                 ~:

                                                 s
          Figure I: Judd/Healy/Johns Boundary Lines




Clerk's Papers (CP) at 146.

       The following are uncontested findings entered following a two-and-a-half-day

bench trial. At the time the Judds purchased their property in 1999, Larry Judd was

aware of a discrepancy between an existing fence line between his property and that of

his neighbors to the west, and the property line as established by a survey. CP at 796

(Finding of Fact 1.2). According to the survey, 50 feet of land to the west of the fence

belonged to the Judds. Although Mr. Judd was aware of the discrepancy, he did nothing

to assert his right to the disputed area until 13 years later. Id. (Finding of Fact 1.3).



                                                        2
No. 33060-5-III
Judd v. Johns


        Jay Healy had purchased his property in 1971 and thereafter used the entire parcel

up to the fence line for various purposes, including as pasture for livestock. Id. (Finding

of Fact 1.4). His use of the property was open and notorious, actual and uninterrupted,

exclusive, and hostile to the true owners. His use continued for more than 10 years. CP

at 797 (Finding of Fact 1.5).

        The Johns purchased their property in 2006 from Edith Nendl. CP at 796 (Finding

of Fact 1.1). Ms. Nendl and her husband, who had acquired the property and built their

home in 1973, had used their entire parcel up to the fence line, including as pasture for

their horses. CP at 797 (Finding of Fact 1.6). They maintained the fence and used the

50-foot strip consistent with ownership. Id. The Nendls' use of the land was open and

notorious, actual and uninterrupted, exclusive, and hostile to the true owners and

continued for a period of more than 10 years. Id. (Finding of Fact 1.7).

        After the trial court issued its memorandum opinion on July 25, 2014, the Judds

moved for reconsideration, arguing that the court failed to address their statutory right to

recover taxes and assessments they had paid on the 50-foot strip. The court denied the

motion on the basis that the Judds failed to specifically plead such a counterclaim and

presented no evidence at trial as to the amount of taxes and assessments attributable to

the strip.

        The Judds appeal the trial court's memorandum opinion, its order denying their

motion for reconsideration, and its order quieting title. The Johnses and Mr. Healy cross

                                              3
No. 33060-5-III
Judd v. Johns


appeal the trial court's denial of their motion for an award of reasonable attorney fees for

an action they contend was frivolous.

                                        ANALYSIS

       In appealing the trial court's order quieting title in Mr. Healy and the Johnses, the

Judds do not assign error to any of the trial court's findings of fact, but make four legal

arguments: that (1) when the proper legal standards are applied, the facts as found by the

court do not support the trial court's determination that Mr. Healy and the Nendls

acquired title by adverse possession; (2) any title acquired by the Nendls through adverse

possession was not conveyed to the Johnses by a deed; (3) even if the defendants

acquired title through adverse possession by 1999, the Judds reacquired title through their

own adverse possession thereafter, or under the "vacant land" statute, RCW 7 .28.080;

and (4) they are entitled, at a minimum, to be reimbursed for taxes they paid on the

disputed property.

       Mr. Healy's and the Johnses' cross appeal contends the claims advanced by the

Judds have been frivolous and we should reverse the trial court's denial of their motion

for an award of reasonable attorney fees.

       We address the issues in the order stated, and then address all parties' request for

an award of reasonable attorney fees on appeal.




                                              4
No. 33060-5-III
Judd v. Johns


                                          APPEAL

            1. The trial court's findings support Mr. Healy 's and the Johnses'
                         acquisition of title by adverse possession

       Adverse possession is a mixed question of law and fact. Chaplin v. Sanders, 100

Wn.2d 853, 863, 676 P.2d 431 (1984). In a bench trial, the court determines whether the

requisite facts exist as the trier of fact, but determines whether those facts constitute

adverse possession as an issue oflaw. See id. As an issue of law, we review the

determination of adverse possession de novo. Bryant v. Palmer Coking Coal Co., 86 Wn.

App. 204,210,936 P.2d 1163 (1997).

       To establish a claim of adverse possession, a party's possession of property must

be: (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile and

under a claim of right made in good faith. Chaplin, 100 Wn.2d at 857. All of these

elements must exist concurrently for at least 10 years. RCW 4.16.020. Because courts

presume that the holder of legal title is in possession, "the party claiming to have

adversely possessed the property has the burden of establishing the existence of each

element." ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989).

       The Judds have not assigned error to any of the trial court's findings of fact. Their

first assignment of error invokes the principle announced in Peeples v. Port of

Bellingham that where the parties "agree on the essential facts relevant to a claim of

adverse possession," the issue of whether a party is entitled to title by right of adverse


                                               5
No. 33060-5-III
Judd v. Johns


possession presents a pure question oflaw. 93 Wn.2d 766, 772, 613 P.2d 1128 (1980),

overruled on other grounds by Chaplin, 100 Wn.2d at 861 n.2. They argue that if the law

is properly applied to the facts found by the court, it does not support the determination

that Mr. Healy and the Johnses acquired title by adverse possession.

       Because the trial court determined that Mr. Healy and the Nendls acquired title by

adverse possession before the Judds acquired their land in 1999, it is the evidence of use

before 1999 that is relevant.

       Exclusive Possession

       The Judds argue the trial court misapplied the law relating to the element of

exclusive possession. "In order to be exclusive for purposes of adverse possession, the

claimant's possession need not be absolutely exclusive. Rather, the possession must be

of a type that would be expected of an owner under the circumstances." Crites v. Koch,

49 Wn. App. 171,174,741 P.2d 1005 (1987). Shared possession with the legal title

holder usually defeats exclusivity. ITT Rayonier, Inc., 112 Wn.2d at 758; 17 WILLIAM B.

STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY

LAW§ 8.19 (2d ed. 2004). But "[t]rifling encroachments by an owner on land held

adversely does not render the claimant's use nonexclusive." Crites, 49 Wn. App. at 175;

see also ITT Rayonier, Inc., 112 Wn.2d at 758-59.




                                             6
No. 33060-5-111
Judd v. Johns


      Undisputed facts bearing on exclusivity were summarized in the trial court's

memorandum opinion: 1

      [Mr. Healy] testified that he planted pasture which extended all the way to
      the fence line and that he actively utilized areas of the disputed strip for his
      horses and a later calf-feeding program and thoroughbred racehorse
      operation. In order to contain his thoroughbreds, in the late 1970s he
      installed hundreds of T-posts made of high-quality heavy grade steel. He
      also testified that later, after the 10-acre parcel to the south was purchased
      (Nendl), he grazed his horses with the permission of the owner on that land
      and continued to use the disputed strip as described. Healy also kept a herd
      of Scottish Highlander Longhorns on the property during the late 1980s and
      early 1990s. He testified that he pastured his cattle on parts of the disputed
      strip and that the fence existing then was sufficient to contain these
      animals.

              Edith Nendl, the prior owner of the Johns' property, testified that at
      the time of the sale to the Johns, her land was fenced on the south and east
      sides and that the Nendls' and Mr. Healy had constructed the fence along
      the line that divided their two properties. She testified that her daughter's
      horse, along with Mr. Healy's horses, pastured on her property and that all
      of the fences were improved in order to contain the horses and that the
      disputed area on the east side of her land was used by the horses until the
      Johns bought the land in 2006. When she moved onto the property in 1973,
      the north-south fence was present running along the east side of her
      property and Healy's property; that for the 33 years she lived on the
      property, she believed that she owned the disputed strip and acted
      accordingly.

CP at 416-17.




      1
        Where, as here, the court's written findings do not fully detail the premises on
which the trial court based its decision, we may look to the court's memorandum opinion.
Heikkinen v. Hansen, 57 Wn.2d 840, 845, 360 P.2d 147 (1961).


                                             7
No. 33060-5-111
Judd v. Johns


       No party introduced evidence that anyone but Mr. Healy and the Nendls used the

disputed strip of land from the early 1970s until the Judds purchased their property in

1999. Before 1999, the property presently owned by the Judds was owned by an

absentee owner by the name of Williams, who, to the parties' knowledge, never

maintained or even visited the property.

       These facts are more than sufficient to establish exclusive possession by Mr.

Healy and the Nendls before 1999. The Judds nonetheless argue that after they

purchased their property in 1999, they announced their ownership and freely used the

disputed property to a limited extent, thereby supporting shared possession. But what

happened after 1999 is irrelevant. By then, the westerly neighbors had acquired title by

adverse possession.

       Open & Notorious Use

       The Judds next argue the court misapplied the law relating to the element of open

and notorious use. Possession is open and notorious if the legal titleholder has actual or

constructive notice of the claimant's use. Chaplin, 100 Wn.2d at 862-63. To charge the

legal titleholder with constructive notice, the claimant's "'use and occupancy need only

be of the character that a true owner would assert in view of its nature and location.'" Id.

at 863 (emphasis omitted) (quoting Krona v. Brett, 72 Wn.2d 535, 539, 433 P.2d 858

(1967), overruled on other grounds by Chaplin, 100 Wn.2d at 861 n.2).




                                             8
No. 33060-5-111
Judd v. Johns


      The Judds rely on the absentee ownership of their predecessor, Mr. Williams, and

attempt to bring themselves within the holding of Murray v. Bousquet, that where a legal

titleholder is absent from land that is "wild country, broken, mountainous, [and] very

sparsely settled," a presumption of known use does not arise as readily from open and

notorious use. 154 Wash. 42, 49, 280 P. 935 (1929).

       In Murray, the disputed property was in a wild and mountainous country suitable

only for grazing. 154 Wash. at 50. While the claimants built a fence on the property,

they only used the property during the summer and did not build on, cultivate, or improve

it. Id. at 48. "Few people, other than hunters and sheep herders, visit[ed] the land." Id.

at 50. The court concluded it could not charge the absentee owner with constructive

knowledge where the character of the land was such that someone could take, fence and

hold a portion for years without anyone knowing of an adverse claim. Id.

       The properties at issue in this case are located in an area that appears from exhibits

to be mostly flat, not mountainous. Rather than wild and remote, these properties were

partially cultivated and improved in the relevant time frame. Some of the property is

wooded, but it appears that most is open grassland. While the property now owned by

the Judds that is east of the fence line was unoccupied before 1999, both Mr. Healy and

the Nendls lived in homes on their properties from the early 1970s. The fence was

present on the property during the entire period and the land to the west of the fence was

being used as pasture.

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No. 33060-5-III
Judd v. Johns


       The Judds did not call Mr. Williams as a witness, so it is not known whether he

had actual notice of use of the disputed strip by his neighbors to the west; ifhe did, that

alone would establish the element of open and notorious use. Id. at 50. Regardless,

given the accessible rural character of the partially cultivated and developed property in

the area, the undisputed facts establish use that was sufficiently open and notorious to

give rise to the presumption of notice.

       Presumption of Permissive Use

       The Judds argue that neither Mr. Healy nor the Nendls can establish that their

possession of the disputed property was hostile because they failed to rebut a

presumption of permissive use. For support, they cite four decisions of our Supreme

Court,2 but each of the cases addresses prescriptive easements. Although adverse

possession and prescriptive easements are similar, they are not identical. 3



       2
        Gamboa v. Clark, 183 Wn.2d 38, 44-46, 348 P.3d 1214 (2015); Nw. Cities Gas
Co. v. W. Fuel Co., 13 Wn.2d 75, 84, 123 P.2d 771 (1942); Bukley v. Dunkin, 131 Wash.
422, 425, 230 P. 429 (1924); and Roediger v. Cullen, 26 Wn.2d 690, 714, 175 P.2d 669
(1946).
       3
           As observed in Kunkel v. Fisher, 106 Wn. App. 599, 603-04, 23 P.3d 1128
(2001 ):
               Although adverse possession and easements by prescription are
       often treated as equivalent doctrines, they have different histories and arise
       for different reasons. Adverse possession promotes the maximum use of
       the land, encourages the rejection of stale claims to land and, most
       importantly, quiets title in land. Easements by prescription do not
       necessarily further those same goals. Their principal purpose is to protect
       long-established positions. Easements by prescription are disfavored in the

                                             10
No. 33060-5-III
Judd v. Johns


       Even in the context of prescriptive easements, our Supreme Court observed in the

decision in Gamboa that it has limited the presumption of permissive use to three factual

scenarios: unenclosed land cases, enclosed land cases in which it is reasonable to infer

neighborly acquiescence, and the use of a road in a noninterfering manner. 183 Wn.2d at

44. Assuming without holding that the principles for applying presumptions in Gamboa

apply in adverse possession cases, the Judds would have to show that one of those three

factual scenarios applies before they would be entitled to a presumption of permissive use.

       The Judds' failure to show that Mr. Williams was aware of his westerly neighbors'

use prevents an inference of neighborly acquiescence. This case does not involve mutual

use of a road. And Mr. Healey and the Nendls were using fenced land, not unenclosed

land: they were using the 50 feet on their side of the historic fence line. The Judds fail to

demonstrate any basis on which they were entitled to a presumption of permissive use.




       law because they effect a loss or forfeiture of the rights of the owner. On
       the other hand, adverse possession is not disfavored. The differences in the
       historical origins and rationales behind prescriptive easement and adverse
       possession have resulted in a single but important difference in how they
       are applied.
                In a claim for a prescriptive easement there is a presumption that the
       servient property was used with the permission of, and in subordination to,
       the title of the true owner. If the use is initially permissive, it may ripen
       into a prescriptive easement only if the user makes a distinct, positive
       assertion of a right adverse to the property owner.

(Footnotes omitted.)


                                             11
No. 33060-5-III
Judd v. Johns


       The Judds also argue that Mr. Healy and the Johnses cannot establish hostile

possession after 1999 because the Judds asserted their ownership at that time and any use

of the property thereafter was necessarily permissive. Since Mr. Healy and the Nendls

acquired title by adverse possession before 1999, they and their successors' use could not

have been permissive.

        2. It is settled Washington law that title acquired by adverse possession is
                implicitly conveyed to a successor occupant who is in privity

       The Judds argue that because the Johnses did not purchase until 2006, they cannot

establish all the elements of possession for 10 years before the Judds filed their action to

quiet title in 2011. They make related arguments that the Johnses cannot "tack" their

period of adverse use with the Nendls and have not demonstrated that any title acquired

by the Nendls was conveyed to them. Well settled law addresses whether and how title

to property acquired by adverse possession is conveyed between successive occupants.

       "When real property has been held by adverse possession for ten years, such

possession ripens into an original title. . . . The person so acquiring this title can convey

it to another party without having had title quieted in him prior to the conveyance." El

Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 855, 376 P.2d 528 (1962). The description in the

deeds will be held to include the disputed property "where there is privity between the

successive occupants." Id. at 856 (quoting Faubion v. Elder, 49 Wn.2d 300, 307, 301




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No. 33060-5-111
Judd v. Johns


P.2d 153 (1956), overruled in part on other grounds by Chaplin, 100 Wn.2d 853); see

also Buchanan v. Cassell, 53 Wn.2d 611,614,335 P.2d 600 (1959).

       "Privity" for this purpose does not require a deed that conveys both the property to

which the seller holds record title and the property acquired through adverse possession.

In Howard v. Kunto, for example, the privity required for a deemed conveyance of title

acquired by adverse possession was found where a deed completely misdescribed the

property formerly occupied by a seller and thereafter occupied by its buyer. 3 Wn. App.

393,400, 477 P.2d 210 (1970), overruled in part on other grounds by Chaplin, 100

Wn.2d 853. The court explained that "the requirement of 'privity' is no more than

judicial recognition of the need for some reasonable connection between successive

occupants of real property so as to raise their claim of right above the status of the

wrongdoer or the trespasser." Id.; see also Naher v. Farmer, 60 Wash. 600, 111 P. 768

( 1910) (permitting tacking when disputed land was not described in deed because the

various owners believed they owned all the land enclosed by the fence). "A formal

conveyance between the parties describing some or all of the property is not essential to

establish such connection." Shelton v. Strickland, 106 Wn. App. 45, 52-53, 21 P.3d 1179

(2001 ).

       These principles are distinct from the concept of "tacking" that is applied where

no single possessor has been in possession for the statutory period and the adverse

possession of multiple claimants must be added together to establish title.

                                             13
No. 33060-5-III
Judd v. Johns


              A variant form of tacking occurs when an adverse possessor has
       already acquired title by running out the statute and then transfers "what he
       has" to a successor. What he has at that point is not merely inchoate title
       but perfected legal title, though not paper title. In strict theory, the
       perfected title, being as full legal title as any documentary title, should be
       transferred by a deed. . . . However, strict theory notwithstanding,
       Washington courts also allow title thus perfected to be turned over by the
       same acts that, before it was perfected, would transfer it by tacking.
       Whether the process should be called "tacking" at this point is debatable,
       but, whatever it is, it is allowed.

17 STOEBUCK & WEA VER, supra, § 8.18, at 540 (footnote omitted). 4

       While the 50-foot strip was not included in the description of the property

conveyed by the statutory warranty deed that passed title from the Nendls to the Johnses,

it is clear under this long-standing Washington case law that because the Johnses

acquired title to what the Nendls owned and at the same time assumed possession and use

of the property up to the fence line, privity existed such that the title acquired by the



       4
          Two cases cited by the Judds have nothing to do with how to construe the title
conveyed between successive occupants of adversely possessed property. In Mugaas v.
Smith, 33 Wn.2d 429,431,206 P.2d 332 (1949), the holder of record title to a strip of
land tried to defeat the claim of a party who had adversely possessed it for the statutory
period by arguing that she later lost title through discontinued use. The court held that a
title acquired through adverse possession is as strong as a title acquired by deed and
"cannot be divested ... by any other act short of what would be required in a case where
[] title was by deed." Id. (quoting Towles v. Hamilton, 94 Neb. 588, 143 N.W. 935, 936
(1913)). In Gorman v. City of Woodinville, 175 Wn.2d 68, 73,283 P.3d 1082 (2012), the
court cited Mugaas as authority for why a vested title acquired by adverse possession
could not be lost through transfer or record title to a city acting in its governmental
capacity, despite state law preventing limitations periods from running against the State.
Neither decision had anything to do with the passage of title between successive
occupants of adversely possessed property.

                                              14
No. 33060-5-111
Judd v. Johns


Nendls through adverse possession may now be claimed by the Johnses. 5

           3. Substantial evidence supports the trial court's implicit rejection of
                    claims that the Judds reacquired the disputed strip

       The Judds next argue that if their predecessor, Mr. Williams, lost title to the

disputed strip as a result of adverse possession, then they reacquired title either through

later adverse possession of their own, or under the "vacant land" statute, RCW 7.28.080.

       Adverse Possession under RCW 7.28. 070

       RCW 7.28.070 provides that a claimant who adversely possesses property "under

claim and color of title, made in good faith" and pays all taxes may acquire title in a

shortened period of only 7 years, rather than the 10 year period provided by RCW

4.16.020(1 ). The Judds demonstrated their record title and that they paid taxes. But they

were also required to prove the elements of adverse possession.

       The Judds have not followed the procedure required to challenge the trial court's

rejection of their adverse possession claim. In assigning error to the trial court's rejection

of their "reacquired title" theories, they necessarily assign error to the court's implicit



       5
         Relying on the same case law, we reject the Judds' request that we recognize and
forbid a novel concept that they call "bad faith tacking" under which, if a party who
knows before purchasing property that its predecessor claims ownership solely through
adverse possession rather than record title, then the purchaser cannot claim to have
acquired title through privity. We also note that the Judds have never shown that the
Johnses knew at the time of their purchase that legal title was actually disputed, since it
was only an anonymous caller, not the Judds, who provided notice to the Nendls' real
estate agent of a possible encroachment.

                                              15
No. 33060-5-111
Judd v. Johns


factual findings rejecting the elements of their claims, despite their position that they

have only raised legal error.

       Not a single finding by the trial court supports any element of the Judds' claim to

have adversely possessed the disputed strip after 1999. Every element of adverse

possession is material. Where the trial court fails to make an express finding on a

material fact, we deem the fact to have been found against the party having the burden of

proof. In re Eggers, 30 Wn. App. 867, 873, 638 P.2d 1267 (1982). To advance this issue

on appeal, then, the Judds should have assigned error to the trial court's deemed findings

against them on the elements of adverse possession and then demonstrated that

substantial evidence did not support the deemed adverse findings.

       Instead, they merely point to some of their own evidence. They claim to have paid

taxes on the property from 1999 to the present, but payment of taxes is an additional

requirement of RCW 7 .28.070, not a substitute for the elements of adverse possession,

and it does not satisfy any of those elements. See Loose v. Locke, 25 Wn.2d 599, 605,

171 P.2d 849 (1946); Austrian Am. Benevolent Cemetery Ass 'n v. Desrochers, 124 Wash.

179,183,214 P. 3,216 P. 891 (1923).

       The Judds' only evidence of actual use of the 50-foot strip was that Larry Judd

would "periodically" cross the fence onto the Johnses' portion of the strip to cut grass

with a hand sickle or spray for weeds. Report of Proceedings (RP) at 348. Mr. Judd




                                              16
No. 33060-5-111
Judd v. Johns


could not recall how many times he had tended the disputed strip, and his son testified

that Mr. Judd mowed the property only once a year.

       "[I]t is not possible to be in adverse possession without physical occupation," 17

STOEBUCK & WEAVER, supra,§ 8.9. Whether possession is uninterrupted is determined

with reference to the frequency with which owners in general would use property of like

nature and condition. Howard, 3 Wn. App. at 397. Possession is uninterrupted if "'the

land is occupied during the period ohime during the year it is capable of use."' Id. at

398 (quoting FRANK EMERSON CLARK & JOHN             s. GRIMES, A TREATISE ON THE LA w OF
SURVEYING AND BOUNDARIES§ 561, at 566 (3d ed. 1959)).

       The trial record easily supports the trial court's implicit finding that the Judds

failed to prove any seven-year period of possession of the 50-foot strip after 1999 that

was exclusive, actual and uninterrupted, open and notorious, and hostile and under a

claim of right.

       The Vacant Land Statute

       RCW 7.28.080, the vacant land statute, is a "substitute for adverse possession,"

which allows good-faith title holders who have paid taxes to acquire title to property

without satisfying the elements of adverse possession-but it applies only to vacant land.

Williams v. Striker, 29 Wn. App. 132,135,627 P.2d 590 (1981). A claimant must prove

(1) color of title to the land, (2) the claimed title to the land is made in good faith, (3) the




                                               17
No. 33060-5-III
Judd v. Johns


land being claimed is vacant and unoccupied, and (4) the claimant paid all taxes legally

assessed on the land for seven successive years. Id.

       Land is not "vacant" for purposes of the statute if "any use of the questioned land,

however temporary, consistent with its general nature," has been made of it. Wilson v.

Howard, 5 Wn. App. 169,172,486 P.2d 1172 (1971). To counter a claim that property

was vacant and unoccupied for the seven years, evidence of use by others "need not be so

extensive as to support a claim for adverse possession." Id.

       Here again, the Judds have not assigned error to findings deemed to have been

made against them on the elements of the claim, and they have not properly advanced an

argument of insufficient evidence. But here, too, the trial record easily supports the

court's implicit findings against them. The evidence established that during the period of

the Judds' ownership, a fence was located on the disputed property, that the fence was

being repaired during that time frame, that the property up to the fence line was planted

as pasture, and that the 50-foot strip was used by Mr. Healy, the Nendls and the Johnses

to contain horses and other livestock. Substantial evidence supported the trial court's

deemed finding that the disputed strip was not vacant and unoccupied.

          4. The Judds failed to plead or prove an entitlement to be reimbursed
                                     for taxes paid

       Finally, the Judds argue the trial court should have ordered Mr. Healy and the

Johnses to reimburse the Judds for taxes paid on the disputed land based on RCW


                                             18
No. 33060-5-III
Judd v. Johns


7.28.160, which authorizes a counterclaim for taxes paid when an action is brought to

recover property from a party. 6 A companion statute prescribes the procedure for

pleading and trial of the counterclaim:

       The counterclaim shall set forth ... the amount of said taxes and
       assessments so paid, and the date of payment. Issues shall be joined and
       tried as in other actions, and the value of the land and the amount of said
       taxes and assessments ... must be specifically found by ... findings of the
       court.

RCW 7.28.170.

       The Judds did not specifically plead RCW 7 .28.160 as the basis for a

counterclaim, and asserted rights under the statute for the first time in their motion for

reconsideration. They did not present evidence during the bench trial from which the

trial court could determine what portion of the property tax they had paid was fairly

allocable to the 50-foot strip. The only evidence they presented was a collection of their

property tax statements from 2001 through 2013.

       They nonetheless argue on appeal that they averred payment of taxes in their

complaint and included a broad prayer for relief. But even if that were enough to show

that a counterclaim "must be allowed" under RCW 7 .28 .160, their actions clearly fell



       6
         Consol. Freight Lines v. Groenen, IO Wn.2d 672, 680, 117 P.2d 966 (1941)
states that the statute (previously Rem. Rev. Stat. § 797) "by its plain terms, indicates that
it was intended to apply only to an action brought by the rightful owner, as plaintiff, to
recover real property." Because the failure of pleading and proof is clear, we do not
reach the issue of statutory construction.

                                              19
No. 33060-5-III
Judd v. Johns


short of the pleading requirements and trial proof required by RCW 7.28.170. The trial

court did not err in failing to address the issue at trial nor did it abuse its discretion in

denying the motion for reconsideration.

                                       CROSS APPEAL

         Mr. Healy and the Johnses moved in the trial court for an award of attorney fees

on the basis that the Judds' action was "frivolous and advanced without reasonable

cause." RCW 4.84.185. In deciding the motion, the trial court noted that the Judds'

complaint had initially been dismissed on summary judgment only to be reconsidered and

reinstated after Gorman, in which Chief Justice Madsen stated in concurrence that "it is

time to rethink the doctrine of adverse possession," because "[ m]any of the beneficial

purposes the doctrine is said to serve do not justify the doctrine in modern times." 17 5

Wn.2d at 75. In refusing to award fees, the trial court observed that some of the policy

arguments cited by Justice Madsen were not unlike arguments made by the Judds during

trial.

         "The lawsuit or defense, in its entirety, must be determined to be frivolous ...

before an award of attorneys' fees may be made." Biggs v. Vail, 119 Wn.2d 129, 133,

830 P.2d 350 (1992). "A frivolous action is one that cannot be supported by any rational

argument on the law or facts." Goldmark v. McKenna, 172 Wn.2d 568,582,259 P.3d

1095 (2011). The trial court's decision under RCW 4.85.185 is reviewed for abuse of

discretion. State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d 64

                                               20
No. 33060-5-III
Judd v. Johns


( 1998). Courts have found no abuse of discretion where causes of action were tenuous

but not brought for the purposes of delay, nuisance, spite, or harassment. Schmerer v.

Darcy, 80 Wn. App. 499,509,910 P.2d 498 (1996).

       Even Justice Madsen acknowledged that the doctrine of adverse possession is a

creature of statute that can only be altered by the legislature, and we have given no

weight on appeal to the Judds' arguments from the Gorman concurrence. Nevertheless,

we find no evidence that the Judds' action was initiated for the purposes of harassment,

delay, nuisance, or spite. We find no abuse of discretion in the trial court's denial of a

fee award.

                             ATTORNEY FEES ON APPEAL

       Both parties request attorney fees on appeal under RAP 18.1. 7 Under RAP 18.1,

the party requesting attorney fees must cite to authority to advise the court of the

appropriate grounds for an award of attorney fees. In re Marriage of Coy, 160 Wn. App.

797, 808, 248 P.3d 1101 (2011).

       The Judds rely on RCW 7.28.083(3), which provides that the prevailing party in

an adverse possession action may request an award of fees, which is discretionary with

the court. Not only have the Judds not prevailed, the statute applies to only those actions


       7Mr. Healy and the Johnses refer to RAP 18.14, but because that rule has nothing
to do with attorney fees, we construe it as a scrivener's error.



                                             21
No. 33060-5-III
Judd v. Johns


filed on or after July 1, 2012, and this action was filed in 2011. LAWS OF 2011, ch. 255,

§ 2. Mr. Healy and the Johnses fail to identify any authority for an award of attorney

fees.

        We deny both parties' fee requests.

        Affirmed.

        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.




WE CONCUR:




                                                   Lawrence-Berrey, A.CJ.




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