                                                                          FILED 

                                                                        MAY 21, 2013 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


JAMES P. THOMAS and DELORES I.               )         No. 30663-1-111
THOMAS, husband and wife,                    )
                                             )
                     Respondents,            )
                                             )
             v.                              )
                                             )         UNPUBLISHED OPINION
ANGELO BRUNETTO and LlNA                     )
BRUNETTO, husband and wife,                  )
                                             )
                    Appellants.              )

       BROWN, J. - Angelo and Lina Brunetto (the Brunettos) appeal the trial court's

quiet title judgment granted to adjacent property owners, James P. and Delores I.

Thomas (the Thomases). The Brunettos contend the trial court erred in deciding the

Thomases proved adverse possession or, alternatively, mutual recognition and

acquiescence. We conclude the trial court did not err in its decision on the first ground

and do not review its alternative decision on the second ground. Accordingly, we affirm.

                                         FACTS

      The unchallenged factual findings here are verities on appeal. See RAP

10.3(a)(4), (g); Davis v. Dep't of Labor & Indus., 94 Wn.2d 119, 123,615 P.2d 1279

(1980). About 44 years ago, Mr. Thomas's parents bought a land parcel and cabin

located at Deer Lake in Stevens County. Another land parcel and cabin were situated
No. 30663-1-111
Thomas v. Brunetto

immediately east. The cabins stood about 25 feet apart from each other without

indication of the boundary line between the parcels. The Thomas family assumed the

boundary line was halfway between the cabins in an area then overgrown with brush.

They then began building improvements and cultivating a lawn on what they understood

to be their land.

       In 1969, the Thomas family replaced cobblestone steps with concrete and laid a

cement pad at the bottom by the lake. From 1971 to 1972, they built a privacy fence

and patio area with a wood retaining wall and stone barbeque. In 1974, they placed

timber rounds on the patio floor. Gradually throughout the 1970s, they cleared the

brush and cultivated a lawn .. Each summer from the time they made the improvements

until 1987, they used the patio and cement pad for recreation on weekends, holidays,

and vacations. Each winter, they stored watercraft on the cement pad.

       In 1990, the Brunettos acquired the east parcel and Mr. Thomas acquired the

west parcel. Mr. Thomas never asked the Brunettos for their permission to use or

occupy the land because he considered it his own. No evidence suggested the

Brunetto predecessors ever used or cared for the land west of the assumed boundary,

but even if they had, any such acts "would have been extremely episodic." Clerk's

Papers (CP) at 96-97. Mr. and Mrs. Thomas married in 1997.

       A neighbor, Linda Howe, observed that by 1972, the Thomas family's

improvements demarcated the assumed boundary in "a straight line from the edge of

the cement pad to the corner of the patio to the corner of the privacy fence." CP at 101.

She noted the Thomas family and the Brunetto predecessors each used and cared for


                                            2

No. 30663-1-111
Thomas v. Brunetto

their respective land consistent with the assumed boundary. While she saw the

Thomas family regularly recreating on or around the improvements and caring for the

lawn west of the assumed boundary, she never saw the Brunetto predecessors do so.

Another neighbor, Wade Carpenter, observed that by 1974, the cement pad, patio, and

privacy fence "clearly defined" the assumed boundary. CP at 102. He noted the

Thomas family's improvements left a "footprint" still remaining on the land. CP at 102.

Additionally, he never saw the Brunetto predecessors use or care for the land west of

the assumed boundary.

      In 2008, a surveyor determined the Thomases' cabin, improvements, and lawn

encroached on the Brunettos' land. The Thomases sued to quiet the Brunettos' title.

The Brunettos admitted the Thomases owned the cabin and concrete path but disputed

the remaining land west of the assumed boundary. Following a bench trial, the trial

court decided the Thomas family adversely possessed the land from the Brunetto

predecessors or, alternatively, those parties adjusted the boundary line by their mutual

recognition and acquiescence. The Brunettos appealed.

                                       ANALYSIS

      The dispositive issue is whether the trial court erred by quieting the Brunettos'

title under adverse possession. The Brunettos contend the record insufficiently

supports the trial court's exclusive and hostile use findings. We disagree.

      Following a bench trial, we review factual findings for substantial evidence and

legal conclusions de novo, determining whether the findings support the conclusions.

Morgan v. Prudentiallns. Co. of Am., 86 Wn.2d 432, 437,545 P.2d 1193 (1976);


                                            3

No. 30663-1-111
Thomas v. Brunetto

Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873,880,73 P.3d 369 (2003). If

the trial court mislabels a factual finding or legal conclusion, we consider it for what it

really is. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). Substantial

evidence is a "sufficient quantum to persuade a fair-minded, rational person of the truth

of a declared premise." Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 147,381 P.2d

605 (1963). We defer to the trial court's assessment of witness credibility and evidence

weight. In re Welfare of Sego, 82 Wn.2d 736,739-40,513 P.2d 831 (1973).

       Where substantial evidence supports a factual finding, we do not "substitute our

judgment for that of the trial court," even if we might have resolved the factual dispute

differently. Wenzler & Ward Plumbing & Heating Co. v. Sellen, 53 Wn.2d 96,101,330

P.2d 1068 (1958); accord Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343

P.2d 183 (1959).

       Under adverse possession, a person acquires legal title to another's land if, for at

least 10 years continuously, he or she possesses the land in a manner that is (1) "actual

and uninterrupted," (2) "open and notorious," (3) "exclusive," and (4) "hostile." Skansi v.

Novak, 84 Wash. 39,44-45,146 P. 160 (1915), overruled on other grounds by Chaplin

v. Sanders, 100Wn.2d 853, 676 P.2d 431 (1984); see RCW4.16.020(1); Gorman v.

City of Woodinville, 175 Wn.2d 68, 71-72, 283 P.3d 1082 (2012). The required burden

of proof for each element is a preponderance of evidence. Teel v. Stading, 155 Wn.

App. 390, 394, 228 P.3d 1293 (2010) (citing Varrelman v. Blount, 56 Wn.2d 211, 211­

12,351 P.2d 1039 (1960».




                                              4

No. 30663-1-111
Thomas v. Brunetto

       An adverse possessor's dominion over the land must be as exclusive as the

community would expect of an ordinary title owner under the circumstances, including

the land's nature and location. Crites v. Koch, 49 Wn. App. 171, 174,741 P.2d 1005

(1987); see ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 758-60, 774 P.2d 6 (1989).

Thus, the adverse possessor need not exclude the title owner entirely. Crites, 49 Wn.

App. at 174. If the adverse possessor allows the title owner '''occasional, transitory use

... as a neighborly accommodation,'" and the community would expect an ordinary title

owner to allow such use, possession is likely exclusive. Lilly v. Lynch, 88 Wn. App. 306,

313,945 P.2d 727 (1997) (internal quotation marks omitted) (quoting 17 WILLIAM B.

STOEBUCK, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAw § 8.19, at 516 (1995»;

see Frolund v. Frankland, 71 Wn.2d 812, 818-19,431 P.2d 188 (1967), overruled on

other grounds by Chaplin, 100 Wn.2d 853. But if the adverse possessor allows the title

owner use indicating his or her true ownership, possession is not likely exclusive.

Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 217, 936 P.2d 1163 (1997).

       An adverse possessor must treat the land as if he or she owns it against and not

subordinate to the title owner's true interest. Chaplin, 100 Wn.2d at 860-61. Thus, the

title owner negates hostility by giving the adverse possessor express or implied

permission to use or occupy the land. Id. at 861-62. Possession is presumed to be

permissive but is hostile if the adverse possessor's acts "clearly show actual

appropriation to his permanent and exclusive dominion and benefit." People's Sav.

Bank v. Bufford, 90 Wash. 204, 206-07, 155 P. 1068 (1916) (internal quotation marks

omitted).


                                            5

 No. 30663-1-111
 Thomas v. Brunetto

       The Brunettos mainly rely on the permissive use doctrine to rebut the exclusive

 and hostile use elements of adverse possession. Permission may be implied where the

title owner allows the adverse possessor's acts out of "neighborly sufferance or

. acquiescence." Roedigerv. Cullen, 26 Wn.2d 690, 707,175 P.2d 669 (1946). But

 permission is not implied simply because the title owner knows of the adverse

 possessor's acts and fails to object. William B. Stoebuck, The Law of Adverse

 Possession in Washington, 35 WASH. L REV. 53, 74 (1960) (citing Hovila v. Bartek,48

Wn.2d 238, 292 P.2d 877 (1956); Booten v. Peterson, 47 Wn.2d 565, 288 P.2d 1084

 (1955), overruled on other grounds by Chaplin, 100 Wn.2d 853); accord 17 WILLIAM B.

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

8.12, at 528 (2d. ed. 2004).

       Finding of fact 2.11 partly states the Thomas family, between 1969 and 1987,

       had been in actual possession of and used the property lying West of the
       assumed boundary exclusively and uninterruptedly. They openly treated
       the land as their own to the exclusion of anyone else, and in a manner
       which is consistent with owning a cabin on a lake with some measure of
       curtilage.... They at all times treated the property lying West of the
       assumed boundary as their own, to the exclusion of all others ...."

CP at 97. Conclusions of law 3.2 and 3.3 partly state the Thomas family's acts prove

 each element of adverse possession by a preponderance of evidence, specifically

noting they exercised dominion over the land in a manner that "was at no point

 permissive but, rather, positively asserted ownership ... from the outset." CP at 105.

To the extent the trial court mislabeled these findings and conclusions, we consider

them for what they really are.



                                            6

No. 30663-1-111
Thomas v. Brunetto

       Witnesses testified the Thomas family built the improvements and cultivated the

lawn on what they understood to be their land. Mr. Thomas testified he never asked the

Brunettos for their permission to use or occupy the land because he considered it his

own. Two neighbors testified while they saw the Thomas family regularly recreating on

or around the improvements and caring for the lawn west of the assumed boundary,

they never saw the Brunetto predecessors do so. One neighbor testified the Thomas

family and the Brunetto predecessors each used and cared for their respective land

consistent with the assumed boundary. The trial court found no evidence suggested the

Brunetto predecessors ever used or cared for the land west of the assumed boundary,

but even if they had, any such acts "would have been extremely episodic." CP at 96-97.

This finding is a verity on appeal because the Brunettos did not assign error to it.

Additionally, the trial court considered the Brunettos' testimony but disbelieved them.

We defer to this witness credibility assessment.

       Considering all, a sufficient quantum of evidence exists to persuade a fair-

minded, rational person the challenged findings are true. Specifically, the trial court

could find the Thomas family treated the land as their own, as an ordinary titled owner in

the area would, by generally keeping the Brunetto predecessors off it and exercising

dominion over it without the Brunetto predecessors' express permission. Therefore,

substantial evidence supports the challenged findings.

      These findings support the challenged conclusions. First, the Thomas family's

possession was exclusive because they either kept the Brunetto predecessors off the

land entirely or allowed them extremely episodic use of it. Either way, the Thomas


                                             7

No. 30663-1-111
Thomas v. Brunetto

family did not allow the Brunetto predecessors any use of the land indicating their true

ownership. Thus, the Thomas family's possession was as exclusive as the community

would expect of an ordinary lake cabin title owner. This satisfies the exclusivity

element. Second, the Thomas family's possession was hostile because it clearly

showed actual appropriation of the land to their permanent and exclusive dominion and

benefit. This indicates the Brunetto predecessors did not allow the Thomas family's

possession out of neighborly sufferance or acquiescence but instead knew of it and

failed to object. It follows that the Brunetto predecessors did not imply their permission

for the Thomas family to use or occupy the land. Thus, the Thomas family treated the

land as if they owned it against and not subordinate to the Brunetto predecessors' true

interest. This satisfies the hostility element.

       In sum, we may not substitute our judgment for that of the trial court under these

circumstances. We conclude the trial court did not err by quieting the Brunettos' title

under adverse possession. Because the trial court U[a]lternatively" based its ruling on

mutual recognition and acquiescence, CP at 106, we do not separately review this

portion of the judgment to affirm, see Green v. Hooper, 149 Wn. App. 627, 639-40, 205

P.3d 134 (2009) (concluding mutual recognition and acquiescence is a "separate and

independent" claim and does not supplement adverse possession in the sense that the

latter contains the former in pleading).

                                B. Attorney Fees and Costs

       The Thomases request attorney fees and costs on appeal under RAP 14.2, 14.3,

and 18.1, and RCW 4.84.080(2). We may award appellate costs to "the party that


                                              8

No. 30663-1·111
Thomas v. Brunetto

substantially prevails on review." RAP 14.2. Because the Thomases have prevailed

here, we grant their request. Their appellate costs include "statutory attorney fees" of

$200 and "reasonable expenses" they incurred for necessary enumerated items. RAP

14.3(a); see RCW 4.84.080(2); RAP 18.1 (a).

      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.




                                                 Brown, J.

WE CONCUR: 




                  Ccr 





                                            9

