                                                    ,;0U?.7 OF APPEALS Ghj i
                                                     STATt OF WASHING iU;l

                                                     2013 OCT 1U ml 9= 15




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE


DAVID C. COTTINGHAM and JOAN S.                  No. 68202-4-1
COTTINGHAM,
                                                 (Consolidated with No. 68402-7-1)
      Appellants/Cross Respondents,

                   v.                            UNPUBLISHED OPINION

RONALD J. MORGAN and KAYE L.
MORGAN, Husband and Wife,

      Respondents/Cross Appellants.              FILED: October 14, 2013

      Schindler, J. — David and Joan Cottingham (Cottingham) own waterfront

property on Lake Whatcom. Ronald and Kaye Morgan (Morgan) own an adjacent

waterfront lot. Cottingham filed a lawsuit against Morgan claiming ownership of a

portion of Morgan's property by adverse possession. Cottingham also asserted claims

for nuisance, outrage, conversion, and trespass. Morgan filed a counterclaim to quiet

title to the disputed area. The court granted Cottingham's motion for partial summary

judgment, concluding Cottingham established adverse possession of approximately 800

square feet of Morgan's property. But at the conclusion of the trial, the court found that

Cottingham established adverse possession as to only 292.3 square feet of Morgan's

property. The court quieted title to the property in Cottingham but allowed Morgan to

purchase the property at fair market value. The court also ordered Morgan pay treble
No. 68202-4-1 (Consol. with No. 68402-7-l)/2

damages under the timber trespass statute, and dismissed Cottingham's claims for
nuisance and outrage.

          On appeal, Cottingham contends the court erred in revising the decision on

partial summary judgment, allowing Morgan to purchase the property, and dismissing

the nuisance and outrage claims. Morgan cross appeals the order granting partial

summary judgment, the determination that he committed conversion, and the award of

treble damages. We affirm the trial court in all respects but remand to address an

inconsistent conclusion of law in the "Supplemental Findings of Fact and Conclusions of

Law."


                                                   FACTS


          David and Joan Cottingham (Cottingham) own two waterfront lots on Lake

Whatcom, Lot 9 and Lot 10 of the "Nixon Beach" tracts. Lot 9 is directly north of Lot 10.

The lots are narrow and rectangular. The western edge of the lots borders Lake

Whatcom. Cottingham's house is located on Lot 9. Lot 11 shares a boundary with Lot

10. Lot 11 is also a narrow rectangular tract of land with the western edge bordering

Lake Whatcom. A 10-foot-wide private road runs across the eastern edge of the Nixon

Beach tracts. The road is held in undivided ownership interests for all of the owners of

14 Nixon Beach lots.1

          In 2004, Ronald and Kaye Morgan (Morgan) considered purchasing Lot 11. In

2005, Morgan retained Larry Steele to conduct a survey. In January 2006, Morgan

purchased Lot 11. A row of laurels was located along the boundary between Lot 10 and

Lot 11.



          1 The deed to Lot 11 states that title includes an "undivided 14th interest in the road shown on the
plat."
No. 68202-4-1 (Consol. with No. 68402-7-l)/3

       In August 2006, Morgan began construction of the house, a fence, and a

driveway. Morgan installed the fence along the property line indentified in the Steele

survey. In September 2007, Morgan removed eight of the laurels to construct the

driveway. In fall 2008, ground water from the septic tank was inadvertently pumped

onto the lot south of Lot 11. Morgan installed a new drain field in the spring.

       In June 2009, Cottingham filed an action to quiet title to a portion of Lot 11

asserting ownership by adverse possession. Cottingham also alleged claims for

trespass, conversion, nuisance, and outrage. Morgan filed a counterclaim to quiet title

to the disputed portion of his property.

       Cottingham filed a motion for partial summary judgment on adverse possession.

Cottingham submitted a declaration stating that beginning in 1989, he mowed and

cleared blackberry in the disputed area. Cottingham also stated that between 1989 and

1994, he planted rhododendrons, the laurel hedge, a garden, a locust tree, and a

hydrangea on or near the disputed area, and installed a compost structure and a swing

set in the disputed area. Cottingham said that he planted another row of laurels on the

eastern end of the boundary in 1995.

       Cottingham also submitted the declaration of Steven Otten. Often maintained

Lot 11 for the previous owner, Gladys Cook, until she sold the property in 1998. Otten

stated that the disputed area "was being regularly mowed and maintained and used by

Cottinghams."

       In opposition, Morgan argued that when he visited the property in 2004 and

2005, he never saw "any evidence of any occupation of Lot 11 by plaintiffs or anyone

else." Morgan submitted the declaration of his surveyor Steele. Steele stated that
No. 68202-4-1 (Consol. with No. 68402-7-l)/4

when he visited the property between January 2005 and January 2007, he did not "see

evidence of any established boundary line, or witness or see evidence of any adverse

occupation." Steele also stated that there was "an uneven row of bushes some of which

were north of Lot 11, some of which were on the surveyed property line, and some of

which were on Lot 11."

         The court granted the motion for partial summary judgment. The court concluded

the unrebutted evidence established that Cottingham adversely possessed

approximately 800 square feet of the property located near the boundary line near Lot

10 and Lot 11 beginning in 1989. The order states, in pertinent part: "Defense has

raised disputed legal conclusions, but no relevant issues of material fact. The adverse

possession lasted well in excess of the statutory requirement."

         Several witnesses testified during the four-day trial on the remaining claims,

including Cottingham, Morgan, septic installer Thomas Pulver, real estate appraiser Don

Gustafson, and surveyors Bruce Ayers and Steele.2 The court also conducted a site
visit.


         At the conclusion of the trial, the court revised its ruling on partial summary

judgment "because at trial it became clear" that many of the laurels were "clearly on Lot

10 and not Lot 11." The court ruled that Cottingham had established adverse

possession as to only 292.3 square feet and not 800 square feet of the disputed area.

The court also ruled that Morgan was entitled to purchase the 292.3 square feet from

Cottingham and that title "in the disputed property, and all of Lot 11 should be quieted in

Morgan upon payment of $8,216.55 to Cottingham." Finding of fact 23 states, in


         2The other witnesses were Whatcom County Environmental Health Specialist Edward Halasz
and septic designer Sharon Kettells.

                                                 4
No. 68202-4-1 (Consol. with No. 68402-7-l)/5

pertinent part:

       Although Cottingham acquired a portion of Lot 11 by adverse possession,
       that portion acquired:
              A.      provides little value to the Cottinghams;
               B.    is of great value to the Morgans, providing for minimum set
       back requirements;
               C.    any remedy requested by Cottingham would result in
       substantial permanent improvements being removed on Lot 11 and/or
       would likely create safety issues related to access to all of the Morgan
       residence and property; and
               D.    any remedy requested by Cottingham would likely result in
       further disputes and conflict as opposed to ending this matter.
               E.     not to allow the Morgans to purchase the property from the
       Cottinghams would place an unreasonable restriction on the use of the
       Morgan's property, without giving much benefit to the Cottinghams.
               F.     not to allow the purchase would significantly affect
       marketability and usability of the Morgans' property.
              The Court should exercise its equitable powers and require that the
       Morgans purchase that portion of the disputed area adversely possessed
       at fair market value.


       The court also ruled that Morgan committed the tort of conversion by removing

several laurels that were clearly not on his property and ordered him to pay treble

damages under the timber trespass statute, RCW 64.12.030. The findings of fact state,

in pertinent part:

               27.    The laurel bushes removed by Morgans were clearly not
       theirs, regardless of location or condition. Morgan committed the tort of
       conversion in taking them.
               28.    The fair market value to replace the laurels is $4342.98.
               29.    The Morgans knew of the existence of a bona fide property
       line dispute but nonetheless intentionally removed the eight laurels in
       violation of R.C.W. 64.12.030. Therefore, damages should be trebled.

       The court rejected Cottingham's nuisance and outrage claims. The court found

that "[t]he Morgans have not been involved in a public nuisance as claimed by

Cottinghams. Any spill from the old septic system or delay in designing a new system

was de minimus and occurred in good faith."
No. 68202-4-1 (Consol. with No. 68402-7-l)/6


      The court entered a judgment against Morgan in the amount of $21,245.49:

               1. For timber trespass waste under RCW 64.12.030, damages for
      which, at $4,342.98, are trebled for $13,028.94.
               2. For purchase of the "disputed area" $8216.55.

      Cottingham filed a motion to reconsider, vacate the judgment, amend the findings

of fact and conclusions of law, or grant a new trial. The court denied Cottingham's

motion and entered Supplemental Findings of Fact and Conclusions of Law proposed

by Morgan.3
                                              ANALYSIS

      Cottingham contends the court erred in revising the decision on partial summary

judgment, ordering him to sell the property he owned by adverse possession, and

dismissing the nuisance and outrage claims. Morgan cross appeals the finding that

Cottingham established adverse possession of a portion of Lot 11, the finding that he

committed conversion, and the decision to award Cottingham treble damages under the

timber trespass statute.

Adverse Possession

       Cottingham claims the court erred in revising the decision on partial summary

judgment by finding that he established adverse possession as to only 292.3 square
feet of Lot 11. We disagree. Because the order on partial summary judgment was not


       3Supplemental finding offact 23 states:
       The portion of Lot 11 claimed by Cottingham by adverse possession:
               A.       provides little value to the Cottinghams;
               B.       is of great value to the Morgans providing for minimum set back
       requirements for the residence, septic system and driveway;
               C.       Morgan at no time acted in bad faith norwillfully in violation of any claim
       [o]f title to Lot 11 of Cottingham;
              D.     any remedy requested by Cottingham would result in substantial
       permanent improvements being removed on Lot 11 and/or would likely create safety
       issues related to access to all of the Morgan residence and property; and
No. 68202-4-1 (Consol. with No. 68402-7-l)/7

final, the court had the authority to modify the order at any time prior to entry of the final

judgment. CR 54(b); Washburn v. Beatt Equip. Co.. 120 Wn.2d 246, 300, 840 P.2d 860

(1992).

       Cottingham also argues substantial evidence does not support the finding that

the disputed area was only 292.3 square feet and not 800 square feet.4

       To establish ownership by adverse possession, Cottingham had the burden of

establishing that possession of the disputed area was (1) exclusive, (2) actual and

uninterrupted, (3) open and notorious, and (4) hostile for the 10-year statutory period.

RCW 4.16.020(1); Chaplin v. Sanders. 100 Wn.2d 853, 857, 676 P.2d 431 (1984); JJT

Ravonier. Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). The party claiming

adverse possession has the burden of establishing each element. Miller v. Anderson,

91 Wn. App. 822, 828, 964 P.2d 365 (1998). Whether a person has gained title by

adverse possession is a mixed question of law and fact. Miller, 91 Wn. App. at 828.

Whether the facts establish adverse possession is a question of law that we review de

novo. Bryant v. Palmer Coking Coal Co.. 86 Wn. App. 204, 210, 936 P.2d 1163 (1997).

       We review a trial court's findings of fact to determine whether substantial

evidence supports the findings of fact and, in turn, whether the findings support the

conclusions of law. Scott v. Trans-Svs.. Inc.. 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003).

Substantial evidence is the quantum of evidence sufficient to persuade a rational, fair-

minded person that the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County,

141 Wn.2d 169, 176, 4 P.3d 123 (2000). The court views the evidence and all


        4Cottingham waived his right to challenge findings offact 4, 5, 7, 8, 10, 14, 15, 18; conclusion of
law 9; and amended conclusions of law 7 and 11; and assignments of error regarding the lis pendens, the
supersedeas bond, and the motion to strike portions of declarations submitted in support of summary
judgment. None of these assignments of error are addressed in the argument section of the brief.
Cowiche Canyon Conservancy v. Boslev. 118 Wn. 2d 801, 809, 828 P.2d 549 (1992).
No. 68202-4-1 (Consol. with No. 68402-7-l)/8

reasonable inferences in the light most favorable to the prevailing party. Korst v.

McMahon, 136 Wn. App. 202, 206, 148 P.3d 1081 (2006). We defer to the trial court's

determination regarding conflicting evidence and credibility of the witnesses.

Weyerhaeuser v. Tacoma-Pierce County Health Dep't, 123 Wn. App. 59, 65, 96 P.3d

460 (2004). "The party challenging a finding of fact bears the burden of showing that it

is not supported by the record." Panorama Vill. Homeowners Ass'n v. Golden Rule

Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000). Unchallenged findings of

fact are verities on appeal. Moreman v. Butcher. 126 Wn.2d 36, 40, 891 P.2d 725

(1995).

       Substantial evidence supports the finding that Cottingham adversely possessed

only 292.3 square feet of Lot 11 because "many laurels were planted on a portion of the

joint property line and a substantial portion of them were clearly on Lot 10 and not Lot

11." The record also supports the finding that only the laurels "on the east part of the

common line were planted ... on Lot 11, in the disputed area." The Steele survey

depicts the placement of the laurels in 2005. Steele testified that the laurel hedge was

located on Lot 11 along the eastern edge of the boundary with Lot 10. The survey also

shows the laurel hedge continuing west along the boundary toward the lake and then

crossing the boundary line onto Lot 10.

Equitable Sale

          Cottingham claims the court abused its discretion by allowing Morgan to

purchase the 292.3 square feet. Quiet title actions are equitable in nature. Durrah v.

Wright, 115 Wn. App. 634, 639, 63 P.3d 184 (2003). A trial court sitting in equity has

broad discretion to fashion a remedy "to do substantial justice." Esmieu v. Hsieh, 92


                                              8
No. 68202-4-1 (Consol. with No. 68402-7-l)/9

Wn.2d 530, 535, 598 P.2d 1369 (1979); Haueter v. Rancich. 39 Wn. App. 328, 331, 693
P.2d 168(1984).

       We review the authority of a court to fashion an equitable remedy for abuse of

discretion. Sac Downtown Ltd. P'ship v. Kahn, 123 Wn.2d 197, 204, 867 P.2d 605

(1994). The trial court's equity power is "flexible and fact-specific." Proctor v.

Huntington, 169 Wn.2d 491, 503, 238 P.3d 1117 (2010).

       The factors set forth in Proctor support the trial court's decision. In Proctor, the

Huntingtons mistakenly built their home, well, and garage on a portion of Proctor's land.

Proctor, 169 Wn.2d at 494. Proctor sued the Huntingtons for ejectment. Proctor, 169

Wn.2d at 495. The trial court ordered Proctor to sell the land to the Huntingtons.

Proctor. 169 Wn.2d at 495. On appeal, the Washington Supreme Court identified a

number of factors the trial court should consider in fashioning the equitable relief, and

affirmed. Proctor, 169 Wn.2d at 504. The Court identified the following factors:

       (1) The encroacher did not simply take a calculated risk, act in bad faith, or
       negligently, willfully or indifferently locate the encroaching structure; (2) the
       damage to the landowner was slight and the benefit of removal 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.

Proctor. 169 Wn.2d at 5005 (quoting Arnold v. Melani. 75 Wn.2d 143, 152, 437 P.2d 908
(1968)). The Court held that the trial court did not abuse is discretion by refusing "to

require the Huntingtons to remove their entire house, garage, and well—at an estimated

cost of over $300,000—because of both parties' good-faith surveying mistake." Proctor,

169Wn.2dat503.




       5(Internal quotation marks omitted.)
No. 68202-4-1 (Consol. with No. 68402-7-l)/10

       Here, the court expressly found that Morgan "at no time acted in bad faith nor

willfully in violation of any claim [of] title to Lot 11 of Cottingham," and the damage to

Cottingham was slight and the benefit of removal small. The court found that the

portion of Lot 11 that Cottingham acquired by adverse possession was of little value to

Cottingham. The court also found that the sale of the disputed area did not limit

Cottingham's use of the property, and Cottingham could still build a garage and access

Lake Whatcom.


       In contrast, the court found that the disputed area was very valuable to Morgan

because the land was necessary to meet the "minimum set back requirements for the

residence, septic system and driveway." The record shows there was less than 1.5 feet

between Morgan's garage and the boundary. Real estate appraiser Don Gustafson

testified that a setback of less than five feet affects marketability. The court also found

that if Cottingham had title to the disputed area, it "would likely create safety issues

related to access to all of the Morgan residence and property." We hold the court did

not abuse its discretion by ordering the equitable sale.

Nuisance


       Cottingham claims the court erred in dismissing his public nuisance claim. A

"public nuisance" is a nuisance "which affects equally the rights of an entire community

or neighborhood." RCW 7.48.130. A nuisance action may be brought by "any person

whose property is . . . injuriously affected or whose personal enjoyment is lessened by

the nuisance." RCW 7.48.020. Nuisance is a substantial and unreasonable


interference with the use and enjoyment of land. Grundy v. Thurston County, 155

Wn.2d 1, 6-7, 117 P.3d 1089 (2005).



                                             10
No. 68202-4-1 (Consol. with No. 68402-7-l)/11

       Cottingham challenges the finding that Morgan "believ[ed] that he was merely
pumping odorless ground water" from a hole on his property, that "[a]ny spill from the

old septic system or delay in designing a new system was de minimus and occurred in

good faith," and that Morgan believed he was pumping "[gjroundwater [and] rainwater"

and "couldn't smell anything."

       Substantial evidence supports the findings. Septic installer Thomas Pulver

testified that when he excavated the old drain field, there was no pooling of effluent or

any evidence that anything spilled onto the Cottingham's property. Further, the

unchallenged finding states that "[t]here was no substantial evidence that effluent was

pumped from the tank or, if it were, that it caused any damage." Unchallenged finding

of fact 24 also states that the delay in fixing the septic system was due to wet winter

weather: "During the wet winter months it can be problematic with the water table in the

area to rebuild a septic field .... The delay was in the hands of professionals and not

unreasonable under the circumstances."6

Outrage

       Cottingham also asserts the trial court erred in dismissing his outrage claim. To

establish outrage, a plaintiff must show "behavior 'so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized community.'" Kloepfel v. Bokor, 149




       6(Emphasis added.) Cottingham also argues Leo Day is not a certified septic installer and there
is no evidence Whatcom County required the rocks installed as barriers around the drain field. The
record does not support Cottingham's argument. The record shows that Leo Day worked for Ultra Tank
Services. Thomas Pulver, the owner of Ultra Tank, is a licensed Whatcom County septic installer. A
Whatcom County Health Department on-site sewage construction permit indicates, "Traffic control
barriers [are] required along perimeter of driveway adjacent to main and reserve drainfield."

                                                 11
No. 68202-4-1 (Consol. with No. 68402-7-1)/*!2


Wn.2d 192, 196, 66 P.3d 630 (2003)7 (quoting Grimsby v. Samson, 85 Wn.2d 52, 59,
530 P.2d 291 (1975)). The unchallenged finding that "[n]o conduct of Morgans could be

regarded as atrocious or utterly intolerable in a civilized community" supports dismissal

of the outrage claim.

Cross Appeal

       Morgan contends the court erred in concluding Cottingham established adverse

possession.

       When reviewing a grant of summary judgment, we undertake the same inquiry as

the trial court. Wilson v. Steinbach. 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Under

CR 56, the moving party bears the initial burden of showing the absence of genuine

material issues of fact and that the moving party is entitled to judgment as a matter of

law. Young v. Key Pharm.. Inc.. 112 Wn.2d 216. 225, 770 P.2d 182 (1989). If the

moving party meets its initial burden, the nonmoving party must set forth specific facts

to rebut showing that a genuine issue as to a material fact exists. Allard v. Bd. of

Regents of Univ. of Wash., 25 Wn. App. 243, 247, 606 P.2d 280 (1980).

       Here, the unrebutted evidence established Cottingham adversely possessed the

disputed area from 1995 to 2005. The court did not err in concluding Cottingham

adversely possessed the disputed area and granting the motion for partial summary

judgment.

       Morgan also challenges the finding that he committed the tort of conversion by

removing eight laurel bushes. "Conversion" is " 'the act of willfully interfering with any

chattel, without lawful justification, whereby any person entitled thereto is deprived of

the possession of it.'" Brown v. Brown. 157 Wn. App. 803, 817-18, 239 P.3d 602

       7(Emphasis omitted.)
                                             12
No. 68202-4-1 (Consol. with No. 68402-7-l)/13

(2010) (quoting Consulting Overseas Mgmt, Ltd. v. Shtikel. 105 Wn. App. 80, 83, 18

P.3d 1144 (2001)).

       Because substantial evidence supports the finding that Morgan "knew of the

existence of a bona fide property line dispute but nonetheless intentionally removed the

eight laurels in violation of R.C.W. 64.12.030," the trial court did not err in awarding

treble damages.

       In October 2007, Morgan wrote Cottingham a letter with a subject line,

"Morgan/Cottingham Lot Line," informing Cottingham that he had removed several

laurels.


       [W]e have removed the marked portions of the hedge needed to provide
       adequate access to our house. Under any possible compromise the
       marked laurels could not stay.
               I am still willing to discuss a transfer of some property at the back of
       our lot in return for some property at the front of your lot if you need this to
       develop your separate lot. At a minimum, however, we would need a
       permanent easement for ingress and egress over the back part of the
       property to get reasonable access to our home.

       The unchallenged findings of fact also state that "[w]hen the Morgans purchased

their property they were aware of the laurels and their location in close proximity to the

survey line." There is also no dispute that Cottingham planted the laurels as a hedge

between Lots 10 and 11.8

       Morgan claims the trial court erred by trebling the damages for the cost of the

laurels because the timber trespass statute did not apply. We disagree. The timber

trespass statute states, in pertinent part:

       Whenever any person shall cut down, girdle, or otherwise injure, or carry
       off any tree, . . . timber, or shrub on the land of another person, . . . without

       8The cases Morgan relies on, Lane v. W.J. Currv &Sons. 92 S.W.3d 355, 364 (Tenn. 2002), and
Gostina v. Ryland, 116 Wash. 228, 234-35, 199 P. 298 (1921), are inapposite because they address
nuisance, not conversion.

                                                 13
No. 68202-4-1 (Consol. with No. 68402-7-l)/14

        lawful authority, in an action by the person, city, or town against the
        person committing the trespasses or any of them, any judgment for the
        plaintiff shall be for treble the amount of damages claimed or assessed.

RCW 64.12.030.9 If a trespasser has knowledge of a bona fide boundary dispute, treble
damages are appropriate. RCW 64.12.030; Maierv. Giske, 154 Wn. App. 6, 21, 223

P.3d 1265(2010).

Supplemental Findings of Fact and Conclusions of Law

       We affirm the trial court in all respects but remand to address what appears to be

an inadvertent error in the Supplemental Findings of Fact and Conclusions of Law. In

the Supplemental Findings of Fact and Conclusions of Law, the court clearly crossed

out the proposed finding that "Cottinghams have not established that they adversely

possessed any portion of Lot 11 ."10 However, the court did not cross out the

corresponding conclusion of law that states, "The Cottinghams have not established all

elements of adverse possession by clear, cogent and convincing evidence as to any

portion of Lot 11 ."11 Accordingly, we remand to address the discrepancy.




         (Emphasis added.)
       10 (Emphasis added.)
       11 (Emphasis added.) This amended conclusion of law is also contrary to the finding that
Cottingham established adverse possession to 292.3 square feet of Lot 11, the order allowing Morgan to
pay Cottingham $8,216.55 to purchase a portion of Lot 11, and entry of the judgment. On appeal,
Morgan admits there is "some confusion in the record" about the court's ruling on adverse possession.

                                                  14
No. 68202-4-1 (Consol. with No. 68402-7-l)/15


      We affirm in all respects but remand to address the inconsistent conclusion of

law in the Supplemental Findings of Fact and Conclusions of Law.12




                                                                        >Wti?A
WE CONCUR:




    £~j &. y                                              G?w«-^




       12 Cottingham is not entitled to attorney fees on appeal based on the statutes he cites.
                                                   15
