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      anB^jus                                           SUSAN L. CARLSON
                                                      SUPREME COURT CLERK




           IN THE SUPREME COURT OF THE STATE OF WASHINGTON


RICARDO G. GARCIA and LUZ C.
GARCIA, husband and wife,

                Petitioners,                                  No. 94511-0


      V.                                                         En Banc


TED HENLEY and AUDEAN HENLEY,
individually and the marital community of           Filed        APR 1 9 2018
them composed.

                Respondents.



      OWENS,J. — This is an encroachment case in which the petitioners were

denied a mandatory injunction compelling removal ofrespondents' encroaching

structure. The right to eject an unlawful encroaching structure is among the most

precious contained within the bundle of property rights. In exceptional circumstances,

when equity so demands, a court may deny an ejectment order and instead compel the

landowner to convey a property interest to the encroacher. To support such an order,

the court must reason through the elements this court listed m Arnold v. Melani, 75
Garcia v. Henley
No. 94511-0



Wn.2d 143,437 P.2d 908,449 P.2d 800, 450 P.2d 815(1968) and reaffirmed in

Proctor V. Huntington, 169 Wn.2d 491, 238 P.3d 1117(2010). The burden of

showing each element by clear and convincing evidence lies with the encroacher.

Arnold, 75 Wn.2d at 152. If this burden is not carried, failure to enter an otherwise

warranted ejectment order is reversible error. Because the respondents failed to carry

their burden, we reverse and remand to the trial court for the entry ofjudgment

consistent with this ruling.

                                         FACTS


       Ricardo and Luz Garcia and Ted and Andean Henley are neighbors in Tieton,

Washington. The two families' plots share a boundary line separated by a fence. The

Henleys rebuilt the boundary fence multiple times during the 1990s. Each time, the

fence crept farther and farther onto the Garcia property. The largest encroachment,

extending a foot across the boundary line, occurred in 1997 while the Garcias were on

vacation. The Garcias objected to this intrusion, but took no legal or other action. In

2011, the Henleys again moved the fence. Mr. Garcia placed apple bins along a

portion ofthe 1997 fence to prevent the Henleys from creeping farther onto the

property. As a result, the 2011 fence tracked the 1997 fence for that shielded portion,

but arced onto the Garcia plot for the 67 feet that did not have apple bins protecting it,

encroaching an additional half foot. The Garcias again requested that the Henleys

move the fence, and the Henleys refused.
Garcia v. Henley
No. 94511-0




       The Garcias initiated suit in 2012, seeking ejectment and damages. The

Henleys counterclaimed, seeking to quiet title in their name. In closing argument, the

Henleys raised the doctrine of"[d]e [mjinimis [ejncroachment" to argue that any

minor deviation from the boundary line ofthe adversely possessed property should be

disregarded. Verbatim Report ofProceeding (Oct. 14, 2015) at 146. The Garcias

responded in their closing argument that "de minimis encroachment" was equivalent

to "balanc[ing][the] equities," and orally cited Proctor before briefly summarizing

why the five elements from Proctor and Arnold were not met. Id. at 149-50.

       The judge determined that the Henleys had adversely possessed the land

encompassed by the 1997 fence, roughly 288 square feet. However,the judge also

found that the 2011 fence encroached an additional 33.5 square feet, and that the 2011

sliver had not been adversely possessed. Rather than grant an injunction ordering the

Henleys to abate the continuing trespass and move the fence, the trial court ordered

the Garcias to sell the 2011 sliver to the Henleys for $500. The judge failed to enter

findings offact regarding the Arnold elements. The Garcias appealed, alleging that

the trial court erred by not entering findings relating to each ofthe five Arnold

elements. The Court of Appeals affirmed, over a dissent in part by Chief Judge

Fearing. Garcia v. Henley, noted at 198 Wn. App. 1037(2017). The Garcias

appealed to this court, and we granted review. Garcia v. Henley, 189 Wn. 2d 1002,
Garcia v. Henley
No. 94511-0




400 P.3d 1249(2017). At issue is solely whether the fence should be relocated to the

boundary line as set by the 1997 fence. We hold that it should.

                                          ISSUE


       Did the trial court err by failing to order ejectment of a trespassing structure

without reasoning through the Arnold factors?

                                       ANALYSIS


       This court first set forth the relevant test in a 1968 case with similar facts.

Arnold,75 Wn.2d at 143. Due to a shared misapprehension ofthe property line, the

Arnolds' fence, two comers oftheir house, and a set of concrete steps encroached on

the Melani estate. Id. at 145. The Melanis engaged in self-help and removed the

encroaching fence, and petitioned the court for a mandatory injunction compelling

removal of the other encroachments. Id.

       This court addressed the potential equitable bases for declining to issue such an

injunction, despite it being the typical property remedy, and instead issue a damages

award and compel the landowner to convey a property interest to the encroacher under

a liability approach. Id. at 146-53. After surveying precedential cases, Arnold set

forth the "test for when a court may substitute a liability mle for the traditional

property mle in encroachment cases." Proctor, 169 Wn.2d at 500.

      [A] mandatory injunction can be withheld as oppressive when, as here, it
      appears .. . that:(1)The encroacher did not simply take a calculated
      risk, act in bad faith, or negligently, willfully or indifferently locate the
      encroaching stmcture;(2)the damage to the landowner was slight and
Garcia v. Henley
No. 94511-0




      the benefit ofremoval equally small;(3)there was ample remaining
      room for a structure suitable for the area and no real limitation on the
      property's future use;(4) it is impractical to move the structure as built;
      and (5)there is an enormous disparity in resulting hardships.

Arnold,75 Wn.2d at 152. In Proctor, we reaffirmed the application of this five-part

test and noted that due to its equitable nature, the question of whether each Arnold

element has been met should be analyzed using the "inherently flexible and fact-

specific" equitable power ofthe court to fashion remedies that do equity. Proctor,

169 Wn.2d at 503. We reaffirmed that a "court asked to eject an encroacher must

instead reason through the Arnold elements as part of its duty to achieve fairness

between the parties." Id.

      Despite this mandate, the trial court in this case made no specific findings

regarding the Arnold elements. The only conclusion oflaw or finding offact relating

to Arnold or Proctor is conclusion oflaw 6, which reads in its entirety:

      Although Plaintiffs typically would be entitled to an injunction, the
      Washington Supreme Court in Proctor v. Huntington, 169 Wash.2d 491,
      238 P.3d 1117(2010)recognized in certain adverse possession cases that
      equitable principles may dictate a different result as to an appropriate
      remedy. The court concludes that this case does warrant application of
      such equitable principles, and thus the court concludes that the fence
      between the Plaintiffs' and Defendants' properties should remain in its
      current location, and that title to the Plaintiffs' property that is subject to
      ejectment should be granted to the Defendants.

Clerk's Papers(CP)at 74-75. The Garcias moved for reconsideration in part because

the court failed to '"reason through the Arnold elements.'" Id. at 85 (quoting Proctor,

169 Wn.2d at 503). That motion was denied.
Garcia v. Henley
No. 94511-0



       The question before this court is whether the trial court erred in compelling the

sale of the Garcias' land without making findings of fact for each Arnold element.

Generally,"findings of fact need not be made concerning every contention made by

parties to a case." Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 707, 592 P.2d 631

(1979). However,"a finding must be made as to all ofthe 'material issues.'" Id.

(quoting Bowman v. Webster,42 Wn.2d 129, 134, 253 P.2d 934(1953); Wold v.

Wold, 7 Wn. App. 872, 875, 503 P.2d 118 (1972)). As this court said m Daughtry, all

that is required is that the trial court inform the appellate court, on material issues,

"'what questions were decided by the trial court, and the manner in which they were

decided.'" Id. (internal quotation marks omitted)(quoting Bowman,42 Wn.2d at

134). This provides appellate courts the ability to determine "whether there was

substantial evidence to support the findings which are challenged in appellant's

assignments of error." State v. Marchand,62 Wn.2d 767, 770, 384 P.2d 865 (1963).

The trial court's failure to enter findings of fact in this case precludes this court from

determining whether the trial court found each Arnold element by clear and

convincing evidence, the appropriate evidentiary standard.

       This court generally cannot make findings of fact, and will not endeavor to do

so based on an incomplete record in which neither party properly briefed or argued the

Arnold elements. See Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343

P.2d 183 (1959). In Old Windmill Ranch v. Smotherman,69 Wn.2d 383, 390,418
Garcia v. Henley
No. 94511-0



P.2d 720(1966), this court collected cases in which it reversed judgments and

remanded the cases to the trial court for the purpose of making material findings of

fact that had been omitted. Typically, this would be the disposition of a case such as

this one. However, because the burden of proof regarding the Arnold elements lies

with the encroaching party, this court need not make any findings of fact in order to

reverse the trial court's order.


       Because a court-ordered conveyance of property from a rightful landowner to

an encroacher is "exceptional relief for the exceptional case," we held in Arnold that

"the evidence ofthe elements listed above" must be "clearly and convincingly proven

by the encroacher." Arnold, 75 Wn.2d at 152. Nothing in Proctor changed that

allocation ofthe burden of proof. The absence of findings of fact relating to the

Arnold elements is equivalent to a finding oftheir absence. Pacesetter Real Estate,

Inc. V. Fasules, 53 Wn. App. 463, 475, 767 P.2d 961 (1989). Because the Henleys

failed to carry their burden of proof, the trial court erred in failing to issue an

injunction compelling removal ofthe encroaching fence.

                                      CONCLUSION


       An encroacher bears the burden of establishing the existence of each Arnold

element by clear and convincing evidence before a trial court may deny a landowner

an injunction ordering ejectment of an encroaching structure. Because the Henleys
Garcia v. Henley
No. 94511-0



failed to carry this burden, the trial eourt erred. Accordingly, we reverse and remand

to the trial court for the entry ofjudgment consistent with this ruling.
Garcia v. Henley
No. 94511-0




                   7.
WE CONCUR:
Ricardo G. Garcia & Luz Garcia v. Ted Henley & Andean Henley, No. 94511-0
Yu, J.(concurring)




                                     No. 94511-0


       YU,J.(concurring) — I agree with the result the majority reaches in this

case. However, I would go one step further and explicitly hold that trial courts

must always enter findings of fact and conclusions oflaw when denying a rightful

owner's request for an injunction to remove a trespasser from private property. I

therefore respectfully concur.

      Petitioners Ricardo and Luz Garcia proved that respondents Ted and Andean

Henley wrongfully built their fence on the Garcias' property. The Garcias were

therefore presumptively entitled to an injunction ordering the Henleys to remove

the fence and stop violating the Garcias' sacred right to the exclusive use and

possession oftheir private property. Proctor v. Huntington, 169 Wn.2d 491, 504,

238 P.3d 1117(2010); Arnold V. Melani, 75 Wn.2d 143, 152, 437 P.2d 908, 449

P.2d 800, 450P.2d 815 (1968).

       The only way for a trespasser to avoid such an injunction is to prove all five

of the Arnold elements by clear and convincing evidence. Arnold, 75 Wn.2d at
Ricardo G. Garcia & Luz Garcia v. Ted Henley & Andean Henley, No. 94511-0
Yu, J.(concurring)

152. If the trespasser meets this burden, then the court may deny an injunction to

the rightful owner, and instead order an equitable remedy that compensates the

owner but does not require the trespasser to leave. Proctor, 169 Wn.2d at 500.

The trial court in this case did attempt to fashion such an equitable remedy,

essentially ordering the Garcias to sell the encroached portion of their property to

the Henleys for $500. The Garcias appealed.

       Where this type of order is entered without findings of fact and conclusions

oflaw about each Arnold element, as it was here, appellate courts can almost never

determine from the record whether the order was properly issued. Therefore, it is

almost always necessary to reverse and remand for the entry offindings and

conclusions. Garcia v. Henley, No. 34189-5-III, slip op. at 4-5(Wash. Ct. App.

Apr. 11, 2017)(unpublished)(Fearing, C.J., dissenting in part),

http://www.courts.wa.gov/opinions/pdf/341895_unp.pdf. To avoid such

inefficiency in future cases, I would explicitly hold that trial courts must enter

findings of fact and conclusions oflaw on each Arnold element in all cases where a

private property owner is denied an injunction to eject a proven trespasser.

       However,I agree with the majority in result that this is one ofthe rare cases

where we can simply reverse, rather than remanding for the entry offindings and

conclusions. The record does not indicate that the trial court actually found that

the Henleys failed to meet their burden and then merely neglected to enter those
Ricardo G. Garcia & Luz Garcia v. Ted Henley & Andean Henley, No. 94511-0
Yu, J.(concurring)

findings. Contra majority at 7("The absence of findings of fact relating to the

Arnold elements is equivalent to a finding oftheir absence."). We cannot know for

certain what the trial court thought, but we do know that the court denied the

Garcias' request for an injunction to eject the Henleys without stating any factual

basis for doing so. This can indicate only that the trial court failed to undertake the

appropriate analysis of the Arnold elements and did not make the necessary

findings in the first place. The court's failure to do so was likely caused by the

Henleys' failure to properly raise that issue, neglecting to even allude to either

Arnold or Proctor in their answer to the complaint, in their trial brief, or at any

other point in the proceedings prior to closing argument at the bench trial. See

majority at 3; Garcia, slip op. at 5-6 (Fearing, C.J., dissenting in part).

       Thus, in this particular case, we can be certain ofthree dispositive points of

law and fact, allowing us to reverse based on the record presented rather than

remanding for the entry of explicit findings and conclusions. First, the

fundamental rule of encroachment law is that trespassers must bear the burden of

establishing by clear and convincing evidence that, despite their trespass, they are

entitled to stay where they are and pay damages to the rightful property owners.

Second, if the trespassers do not meet their burden, then the owners are absolutely

entitled to ejectment. And third, because it is indisputably clear from the record

that the Henleys never even pleaded that they should receive an equitable remedy
Ricardo G. Garcia & Luz Garcia v. Ted Henley & Andean Henley, No. 94511-0
Yu, J. (concurring)

instead of being ejected, the Garcias are entitled to ejectment as a matter oflaw.

Lybbert v. Grant County, 141 Wn.2d 29,40, 1 P.3d 1124(2000).

       Therefore, I agree with the majority that an order must issue on remand

directing the Henleys to remove their fence from the Garcias' property. I

respectfully concur.
Ricardo G. Garcia & Luz Garcia v, Ted Henley (& Andean Henley, No. 94511-0
Yu, J.(concurring)
