     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



E. DUANE GOLPHENEE, a married                         No. 75001-1-1
individual and JOHN SOLIN, a married
individual,
                   Appellants,
                                                      DIVISION ONE
WILLIAM and SUSAN GOODMAN, husband
and wife; MICHAEL and JOAN LEDRESSAY,
husband and wife, MICHAEL SZEMILLER, an
individual and HUNTER and ANGELA
NEWTON, husband and wife:                             UNPUBLISHED OPINION

      Plaintiffs pursuant to RCW 7.24.110
      V.

PONDILLA ESTATES COMMUNITY
ASSOCIATION, a Washington nonprofit
corporation,

                    Respondent.                       FILED: April 3, 2017

      SPEARMAN, J. — Certain homeowners in the Pondilla Estates

Homeowners Association (Association) were serviced by a private road (Private

Road Owners). In 1991, the Private Road Owners entered into an agreement

with the Association to resolve a dispute over maintenance of the private road.

Under the agreement, the Association members who were not serviced by the

private road agreed to pay half the cost for a bulkhead and the Private Road

Owners assumed responsibility for future maintenance of the road. In May 2015,
No. 75001-1-1/2

two Private Road Owners brought an action under the Declaratory Judgement

Act to challenge the enforceability of this agreement. The trial court applied a six

year statute of limitations and dismissed the suit as untimely. On appeal, the

Private Road Owners challenge the trial court's determination that a six year

statute of limitations applied. Finding no error, we affirm.

                                       FACTS

        Pond illa Estates is a residential waterfront community on Whidbey Island.

Of its 31 lots, seven are waterfront lots that may be accessed only by a private

road.
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In 1989, the Private Road Owners became concerned the private road would

collapse due to erosion on the beach. They feared they would lose access to



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No. 75001-1-1/3

their properties unless a bulkhead was built to prevent further erosion. The

Private Road Owners approached Pondilla Estates Community Association

(Association) with their concerns. The Association owns and operates a water

system for the community. It also owns and maintains the community beach,

which may be used by Association members, and is accessible only by the

private road. The Association includes all parcel owners in the Pondilla Estates

plat as well as several adjacent parcel owners who are not in the plat.

       The Private Road Owners wanted the Association as a whole to pay for

the bulkhead. The rest of the Association owners wanted the Private Road

Owners to pay for the bulkhead. The Association sought legal opinions and

received the advice that the Association was "most likely" responsible for

maintenance, but that it would be "difficult to predict what the outcome would be

in Court." Clerk's Papers(CP) at 217. In order to resolve the dispute, the

Association entered into an agreement with the Private Road Owners in 1991.

The Association agreed to pay half of the costs and expenses to build the

bulkhead and the Private Road Owners agreed to maintain and repair the private

road in the future. In addition, the Private Road Owners granted Association

members an easement over the private road in order to access the community

beach. The agreement specified that it was binding on the parties, heirs,

successors and assigns, and as such was considered as running with the land.

The Association paid $15,500 for half of costs.

       The agreement was recorded with the Island County Auditor on

September 18, 1991. It was re-recorded on March 23, 1992 to include two legal


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No. 75001-1-1/4

descriptions of parcels that were named in the agreement, but inadvertently

omitted in the attachment containing the legal descriptions.

        The appellants, E. Duane Golphenee and John Solin (Solin), are Private

Road Owners. On May 2015, they filed this suit seeking a declaration that the

agreement is void or unenforceable. The Association moved to dismiss, arguing

that the suit was untimely and that plaintiffs failed to join necessary parties. The

Association submitted a number of exhibits and affidavits in support of its motion.

The trial court granted the motion to dismiss, finding that the action was barred

by a six year statute of limitations.

                                        DISCUSSION

        We review the trial court's summary judgment decision de novo.1 Michael

v. Mosquera-Lacy, 165 Wn.2d 595, 601, 200 P.3d 695 (2009). Summary

judgment is appropriate only when there is no genuine issue of material fact and

a party is entitled to judgment as a matter of law. CR 56(c).

Consideration

        Solin first contends that the agreement fails for lack of consideration. He

argues that the Association had a preexisting legal duty to maintain the private

road. As a result, according to Solin, the money the Association paid toward the

bulkhead in 1991 was not new consideration and thus, cannot support the

agreement. The Association argues that there is consideration because the

Private Road Owners received immediate funding for the bulkhead in exchange


        1 The parties agree that because the court considered evidence outside of the complaint,
the panel should treat the motion to dismiss as one for summary judgment.


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No. 75001-1-1/5

for the promise that the Association as a whole would have no future financial

responsibility for maintaining the private road. The Association is correct.

       A contract must be supported by consideration. Consideration is "any act,

forbearance, creation, modification or destruction of a legal relationship, or return

promise given in exchange." Labriola v. Pollard Grp., Inc., 152 Wn.2d 828, 833,

100 P.3d 791 (2004)(quoting King v. Riveland, 125 Wn.2d 500, 505, 886 P.2d

160 (1994)). Consideration is a bargained-for exchange of promises. Id. at 833

(citing Williams v. Fruit Co. v. Hanover Ins. Co., 3 Wn. App. 276, 281, 474 P.2d

577 (1970)). A performance of or a promise to perform a preexisting duty does

not constitute consideration. Multicare Med. Ctr. v. State, Dep't of Soc. & Health

Servs., 114 Wn.2d 572, 584-585, 790 P.2d 124(1990)superseded by statute on

other grounds by Neah Bay Chamber of Commerce v. Dep't of Fisheries, 119

Wn.2d 464, 832 P.2d 1310 (1992). But "'[t]he promise of one party to forgo his

rights under the contract is sufficient consideration for the promise of the other

party to forgo his rights." Rosellini v. Banchero, 83 Wn.2d 268, 273, 517 P.2d

955(1974)(quoting 15W. Jaeger, Williston on Contracts § 1826 at 487(3d ed.

1972)). "Forbearance to prosecute a valid claim or assert a legal right constitutes

sufficient consideration for a contract. . . . It is not essential ... that the claim be

indisputable or legally certain; where the validity of the claim is doubfful, the

existence of a possibility of recovery is sufficient." Johnson v. S.L. Savidge, Inc.,

43 Wn.2d 273, 276, 260 P.2d 1088 (1953).

       The Association and Private Road Owners had a bona fide dispute over

legal responsibility for the private road. Each could have asserted a legal right


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No. 75001-1-1/6

against the other. The Private Drive Owners could have sued the Association

members for pro rata contribution toward the road, and the Association could

have asserted that it had no obligation to pay for the bulkhead. Instead, they

each agreed to forbear prosecution of their legal claims. This constitutes

sufficient consideration for the 1991 agreement.

Statute of Frauds

       Next, Solin argues that the agreement is void because it does not comply

with the statute of frauds due to a number of alleged defects.

       The purpose of the statute of frauds is to prevent fraud arising from

inherently uncertain oral agreements. Howell v. Inland Empire Paper Co., 28 Wn.

App. 494, 498,624 P.2d 739 (1981). It requires that "[e]very conveyance of real

estate, or any interest therein, and every contract creating or evidencing any

encumbrance upon real estate, shall be by deed. . ." RCW 64.04.010. Deeds

must "be in writing, signed by the party bound thereby, and acknowledged. . . ."

RCW 64.04.020. A deed granting an easement must have a description of the

land such that an easement can be located on the servient estate. Maier v.

Giske, 154 Wn. App. 6, 16, 223 P.3d 1265(2010)(citing Sunnyside Valley kr.

Dist. v. Dickie, 149 Wn.2d 873, 73 P.3d 369 (2003)). This requires that servient

estate have an adequate legal description. Berg v. Ting, 125 Wn.2d 544, 569,

886 P.2d 564 (1995).

       Solin first argues that the agreement is void under the statute of frauds

because the originally recorded agreement lacked legal descriptions of two

dominant estate parcels. The agreement was re-recorded to include those legal


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No. 75001-1-1/7

descriptions. A trial court may reform a deed to reflect the parties' intent where a

scrivener's error leads to a deficient legal description of land. Glepco, LLC v.

Reinstra, 175 Wn. App. 545, 554, 307 P.3d 744(2013)(citing Halbert v. Forney,

88 Wn. App. 669, 673, 945 P.2d 1137 (1997)). Here, the trial court referred to the

omission as a "scrivener's error," and analyzed the re-recorded agreement for

compliance with the statute of frauds. CP at 6, 10. This was an appropriate

exercise of the trial court's authority to reform the agreement as it is expressed in

the re-recorded agreement. Tenco, Inc. v. Manning, 59 Wn.2d 479, 484, 368

P.2d 372 (1962). We find that the agreement, as reformed by the trial court,

complies with the statute of frauds.

       Solin next contends the agreement violates the statute of frauds because

it does not legally describe all Association parcels. This argument fails because,

as discussed above, the legal description in a deed granting an easement is

sufficient if it permits location of the easement on the servient estate. See Maier,

154 Wn. App. at 16. Here, the legal descriptions for all Association parcels are

not required because they are not necessary to locate the easement.

       Solin argues that the Private Road Owners' spouses must sign the

agreement. He does not explain or cite to which spouse did not sign the

agreement. If such a signature is missing, its omission does not render the

agreement void because a unilateral encumbrance by one spouse is merely

voidable, and only at the election of the nonjoining spouse or partner. See

Sander v. Wells, 71 Wn.2d 25, 28, 426 P.2d 481 (1967)(citing Tombari v.

Griepp, 55 Wn.2d 771, 350 P.2d 452(1960)).


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No. 75001-1-1/8

       Solin argues that the agreement does not comply with the statute of frauds

because it does not describe the bulkhead. The argument is without merit.

Because the bulkhead was not conveyed, no legal description of it is necessary.

       Solin argues that the terms of the agreement are not sufficiently definite

because they lack material terms related to maintenance of the bulkhead as

between the Private Drive Owners. An agreement under the statute of frauds

"must embody all of the essential and material parts of the contemplated lease

with sufficient clarity and certainty to show that the minds of the parties have met

on all material terms and with no material matter left for future agreement or

negotiation." Friedl v. Benson, 25 Wn. App. 381, 387, 609 P.2d 449(1980)(citing

72 Am.Jur.2d Statute of Frauds § 285, at 805(1974). But the agreement here is

between the Private Drive Owners and the Association. It settles the dispute over

financial responsibility for the private road and includes sufficiently definite terms

to bind the Private Drive Owners and the Association. The existence or

nonexistence of any terms between the Private Driver Owners regarding

maintenance of the bulkhead is irrelevant.

       Solin also contends that the agreement must be signed by all Association

members in the Pondilla Plat. The agreement only bears the signatures of the

Private Road Owners and the President and Secretary of the Association. He

argues that each Pondilla Plat owner also owns part of the servient estate

because, according to the trial court, they are part owners of the private road.




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No. 75001-1-1/9

Thus, according to Solin, each Pondilla Plat owner must sign the agreement to

grant an easement to the non-Pondilla Plat Association members.2

        Solin is correct that the statute of frauds requires bound parties to sign the

agreement. But even if the agreement lacks signatures of all Pondilla Plat

owners, we decline to invalidate it because there has been part performance of

the agreement.

        Under the doctrine of part performance, an agreement to convey an

interest in real estate that does not comply with the statute of frauds may be

proved and specifically enforced if there is sufficient part performance of the

agreement. Berg, 125 Wn.2d at 556 (citing Miller v. McCamish, 78 Wn.2d 821,

826, 479 P.2d 919 (1971)). The part performance doctrine empowers

Washington Courts to enforce an agreement to convey an interest in real

property that does not satisfy the statute of frauds if equity and justice so require.

Id. at 571 (citing Miller, 78 Wn.2d at 826). We examine three factors to determine

if there has been part performance of the agreement so as to take it out of the

statute of frauds:(1) delivery and assumption of actual and exclusive possession;

(2) payment or tender of consideration; and (3) the making of permanent,

substantial and valuable improvements, referable to the contract. Id. at 556.




         2 In 1991, the understanding of the Association and the private road owners was that the
private road was owned by the private road owners or the developers. So at the time of
execution, it complied with the statute of frauds requirement that servient estate owners sign the
agreement because the private road owners signed it. It was not until the current litigation that
Solin argued, and the trial court found, that the private road was partly owned by the Association.
This gave rise to Solin's argument that the agreement lacked the signatures of all Pondilla Plat
owners and was therefore invalid under the statute of frauds.



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No. 75001-1-1/10

       Here, the first factor has diminished probative value because possession

of an easement will never be exclusive. With respect to the second factor, the

Association did make its payment toward construction of a bulkhead. The third

factor is also satisfied because a bulkhead was built in reference to the

agreement.3 We conclude that under the doctrine of part performance, the

agreement is enforceable even though it is not in strict compliance with the

statute of frauds. Accordingly, we hold that the Association members are not

obligated to contribute financially to the maintenance of the private road.

       Statute of Limitations

       Solin argues that the agreement is a continuous contract because it runs

with the land and requires ongoing maintenance by the Private Road Owners. He

contends that the trial court erred by applying the six year statute of limitations

because performance under the agreement is not complete.

       Solin does not cite cases to support that a covenant running with the land

indefinitely tolls the statute of limitations. The agreement required the Association

to contribute half of the costs and expenses for the bulkhead. The Association

made its contribution and performance of the contract was complete. The

agreement shifted the burden for maintenance onto the Private Drive Owners,

but the manner and means by which they accomplished this is irrelevant to the

obligations between the parties. The claim that the contract at issue is a




        3 The Association "shall contribute one-half of the costs and expenses incurred with
respect to the construction of a log pile bulkhead to deter and prevent erosion and damage to the
Private Road...." CP at 143.


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No. 75001-1-1/11

continuous one and thereby not subject to a statute of limitations is without merit.

The trial court did not err when it found that this action was barred.

Admission of Evidence

       Solin argues that the trial court erred by admitting two legal opinions on

who owns the private road. He contends that the lawyer's advice in the "position

paper" is hearsay. He also contends that an affidavit describing the developers'

intent for the private road is irrelevant and hearsay. A trial court's decision to

admit evidence is reviewed for abuse of discretion. State v. Young, 160 Wn.2d

799, 805-06, 161 P.3d 967(2007). Hearsay is a statement offered in evidence to

prove the truth of the matter asserted. ER 801(c). But here, the statements were

not offered to prove legal responsibility for the road. They were offered to show

the ambiguity faced by the Association and private drive owners. As such, neither

falls within the ambit of the hearsay rule. The trial court did not err by admitting

the legal opinions.

Attorney Fees

       The Association requests an award of attorney fees for a frivolous appeal

under RAP 18.9(a). An appeal is frivolous "if the appellate court is convinced that

the appeal presents no debatable issues upon which reasonable minds could

differ and is so lacking in merit that there is no possibility of reversal." In re

Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929(1997)(citing Mahoney

v. Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510 (1987)). Solin's appeal presents

debatable arguments so we decline to award attorney fees for a frivolous appeal.




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No. 75001-1-1/12

      Affirmed.




WE CONCUR:




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