                                                                                     20I1O Trf          r   9; I
                                                                                     STATE

                                                                                     BY

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                                DIVISION II

KAY        JOHNSON         and   RICK     JOHNSON,                     No. 45116 -6 -II
husband and wife and their marital community,

                                    Appellants,


           v.




 ROY KISSLER and JANIE LUZZI -KISSLER,                           UNPUBLISHED OPINION

husband and wife and their marital community,
 and KISSLER MANAGEMENT, INC.,




          LEE, J. —   Kay and Rick Johnson appeal the superior court' s order granting Roy and Janie

Kisslers' motion for summary judgment and dismissing the Johnsons' adverse possession claim.

The Johnsons argue that the superior court erred because there were genuine issues of material fact


precluding summary judgment. We reverse the superior court and remand for further proceedings.

                                                     FACTS


          The Johnsons own property adjacent to the Kisslers' property. A chain -link fence separates

the two   properties.    The chain -link fence is approximately three feet away from the property line

on the Kisslers' property. The three feet between the chain -link fence and the property line is the

property   at   dispute here ( the disputed   parcel).
No. 45116 -6 -II



          The Johnsons' property        was   originally    owned     by    Dona   Gainey   Mathews (    Gainey),   who




acquired it in 1977. In 1982, George Fleming, a predecessor owner of the Kisslers' propery, built

a house on his property and installed the chain -link fence that currently separates the two

properties. After Fleming installed the chain -link fence, Gainey treated the disputed parcel as her

own property by clearing it and planting a garden. Gainey maintained the garden and treated all

the property on her side of the fence as her own until she sold her property to David and Judy

Sizemore in 1996. She also installed a dog run on part of the disputed parcel. In 2007, the Johnsons

bought the property from the Sizemores.

          Fleming     sold   his property to the Halls in 1992.         The. Halls subsequently sold the property

to the Kisslers.


          The Kisslers and Johnsons began having disagreements about the use of the disputed

parcel. The Johnsons filed a complaint, alleging that they had acquired the disputed parcel through

adverse possession.'         The Kisslers filed a motion for summary judgment to dismiss the Johnsons'

adverse   possession     claim and    to   quiet   title to the   disputed   parcel   in the Kisslers.    The Kisslers


submitted evidence showing that, in 1984, a survey of the property was done that showed the

chain -link   fence   was not on     the property     boundary      line.   They also submitted an affidavit from

David Sizemore in which he stated that ( 1) the 1984 survey was attached to the deed transferring

the property to him, (2) he knew the          chain -link   fence   was not   the true   boundary   line, ( 3) he had an


agreement with the Kisslers that he could use the disputed parcel as long as he did not plant



 The complaint actually included several claims, many of which were related to an easement on a
differentpiece of the property. The remaining claims were dismissed when the Johnsons took a

voluntary nonsuit under CR 41.



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No. 45116 -6 -II



vegetation with invasive root structures, and ( 4) he had the same understanding and agreement

with   the Kisslers'    predecessors,   the Halls.      Similarly, Roy Kissler submitted an affidavit stating

that he also knew the fence was not the boundary line and he gave the Sizemores permission to

use the disputed parcel so long as they did not plant vegetation with invasive root structures. The

Kisslers also submitted the deeds transferring the property from Gainey to the Sizemores, and the

Sizemores to the Johnsons; neither of these deeds mentioned the disputed parcel.2

         In their response to the Kisslers' motion for summary judgment, the Johnsons presented an

affidavit   from   Gainey. Gainey stated that she and Fleming considered the chain -link fence the

boundary line between the properties and that they never had an agreement in which Fleming gave

her   permission   to   use   the disputed   parcel.
                                                       When Fleming sold the property to the Halls in 1992,

the chain -link fence was understood to be the boundary between the properties, and Gainey never

obtained the Halls' permission to continue using the disputed parcel. After Fleming installed the

chain -link fence in 1982, Gainey used and maintained the disputed parcel as if it was her own

property, never discussed the use with Fleming, and continued using and maintaining the disputed

parcel until she sold it to the Sizemores in 1996.


         The Johnsons also presented Kay Johnson' s affidavit, which stated that Judy Sizemore had

shown her the property numerous times; and that Judy showed her the plants that she had planted

on the disputed parcel and the new sprinkler system that the Sizemores had installed. Judy never

once mentioned that the disputed parcel was not their property, that they used it with the Kisslers'

permission, or that they had an agreement with the Kisslers regarding the use of the disputed parcel.




2 The deed from the Sizemores transfers the property to " Kay Pruitt" who is now Kay Johnson.

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No. 45116 -6 -II



Kay also stated that although she had numerous conversations about the disputed parcel with the

Kisslers, the Kisslers never mentioned that the disputed parcel was their property .or that they

previously had      an agreement with        the Sizemores relating to the disputed          parcel.   In addition, the


Johnsons submitted the disclosure form that the Sizemores had signed during the sale of the

property in which they stated that there was no disputed property or agreements regarding the use

of their property.

          The superior court granted the Kisslers' motion for summary judgment dismissing the

Johnsons' claim. The superior court also quieted title to the disputed parcel in the Kisslers, ordered


the Johnsons to remove any plants or improvements from the disputed parcel, and awarded the

Kisslers attorney fees. The Johnsons appeal.

                                                      ANALYSIS


          We review motions for summary judgment de novo and engage in the same inquiry as the

superior court.     Cole   v.   Laverty,   112 Wn.   App.      180, 184, 49 P. 3d 924 ( 2002).   Summary judgment

is appropriate if there is no genuine issue of material fact and the moving party is entitled to

judgment    as a matter of      law. CR 56( c);    Cole, 112 Wn. App. at 184. We consider the facts and all

reasonable      inferences in the light     most   favorable to the nonmoving party.          Cole, 112 Wn. App. at

184. If reasonable minds could reach but one conclusion from all the evidence, summary judgment

is   correct.   Harberd v. City of Kettle Falls, 120 Wn. App. 498, 507 -08, 84 P. 3d 1241, review

denied, 152 Wn.2d 1025 ( 2004). Bare assertions that a genuine issue of material fact exists will


not defeat summary judgment in the absence of actual evidence. Harberd, 120 Wn. App. at 508.

          To establish ownership of a piece of property through adverse possession, a claimant must

prove    that   possession of     the property   was "(   1)   open and notorious, (   2)   actual and uninterrupted,
No. 45116 -6 -II



 3)   exclusive, (   4) hostile    and under a claim of right, ( 5)        for   a period of   10   years."   Shelton v.


Strickland, 106 Wn.         App.    45, 50, 21 P. 3d 1179,       review   denied, 145 Wn.2d 1003 ( 2001).          Title


automatically    vests     in   a claimant who satisfies     the   elements      for the 10 -year   period.   Gorman v.


City    of Woodinville, 175 Wn.2d 68, 72, 283 P. 3d 1082 ( 2012). " Adverse possession is a mixed


question of law and fact: whether the essential facts exist is for the trier of fact, but whether the

facts   constitute adverse possession         is for the   court   to determine     as a matter of   law." Lingvall v.


Bartmess, 97 Wn. App. 245, 253, 982 P. 2d 690 ( 1999).

          The Johnsons argue that the superior court erred by granting the Kisslers' motion for

summary judgment because title to the disputed parcel vested in Gainey before the property was

ever transferred to the Sizemores, and therefore, any agreement that the Sizemores may have had

with the Halls and Kisslers could not have transferred title of the disputed parcel back to the Halls


or the Kisslers and is immaterial. We agree.


          It is undisputed that Gainey' s use of the disputed parcel was open and notorious, actual and

uninterrupted, exclusive, and         for   a period of at   least 10   years.    Gainey' s affidavit establishes that

she cleared the disputed parcel and maintained it as a garden as if it were her own property for the

entire period between 1982 and 1996, when she sold her property. Therefore, the only element at

issue here is whether Gainey' s use of the disputed parcel was hostile.

          To satisfy the hostility element, the claimant' s use must be adverse to the title owner' s

interest. Herrin      v.   O' Hern, 168 Wn.     App.   305, 311, 275 P. 3d 1231 ( 2012).            Subjective belief in


ownership does        not establish    hostility. Chaplin v. Sanders, 100 Wn.2d 853, 861, 676 P. 2d 431

 1984).    When a person landscapes and maintains the property as if it were his or her own, in the

same manner as an owner, the use satisfies the hostility element. Maier v. Giske, 154 Wn. App.



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No. 45116 -6 -I1



6, 19, 223 P. 3d 1265 ( 2010); Lingvall, 97 Wn.          App.    at   254.   However, a claimant' s use is not


hostile if the title owner granted the claimant permission to use the disputed property. Harris v.

Urell, 133 Wn.      App.   130, 139, 135 P. 3d 530 ( 2006), review denied, 160 Wn.2d 1012 ( 2007).


          The Kisslers assert that because a property survey was completed after the chain -link fence

was installed, it can be inferred that Fleming knew the correct property boundary. Therefore, the

appropriate inference is that Fleming gave Gainey permission to use the disputed parcel for her

garden. However, in a motion for summary judgment, all reasonable inferences must be drawn in

favor of the nonmoving party. Here, the Johnsons are the nonmoving party and are entitled to all

reasonable inferences being drawn in their favor. Therefore, drawing the inference that Fleming

gave Gainey permission to use the property, which is an inference in favor of the Kisslers, is

improper in a summary judgment motion brought by the Kisslers.

          The Kisslers also argue that the Johnsons cannot establish the hostility requirement because

Sizemore' s declaration shows that he knew and agreed that the property belonged to the Kisslers.

However, once adverse possession is established by. 10 years of adverse use, title automatically

passes    to the   claimant.   Halverson v. City of Bellevue, 41 Wn. App. 457, 460, 704 P. 2d 1232

 1985).    There is sufficient evidence to show that Gainey used the disputed parcel as her own from

1982 to 1996.       Therefore, for summary judgment purposes, the Johnsons have demonstrated that

title to the disputed parcel vested in Gainey during the period that she owned her property.

          Once title passed to Gainey, the Sizemores' purported understanding that the property

actually belonged to the Kisslers did      not   divest title   of   the disputed   parcel.   In Mugaas v. Smith,


33 Wn.2d 429, 431, 206 P. 2d 332 ( 1949), our Supreme Court stated:




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No. 45116 -6 -II



                   We have on several occasions approved a statement which appears in
        Towles v. Hamilton, 94 Neb. 588, 143 N.W. 935, 936, that:


                 It is elementary that where the title has become fully vested by disseizin
        so long continued as to bar an action, it cannot be divested by parol abandonment
        or relinquishment or by verbal declarations of the disseizor, nor by any other act
        short of what would be required in a case where his title was by deed."

                   See McInnis   v.   Day [ Lumber] Co.,         102 Wash. 38, 172 [ P]. 844 [ 1918];   King
        County v. Hagen, 30 Wn.(2d) 847, 194 P.( 2d) 357 [ 1948].



                   Appellants    cite   no   cases,    and we have found none, supporting their
        contention    that,   under a   recording     statute ...    a conveyance of the record title to a
        bona fide purchaser will extinguish a title acquired by adverse possession.

Accordingly, the Kisslers' contention that the Sizemores' purported understanding and agreement

with the Halls and the Kisslers somehow terminated or extinguished the title acquired by Gainey' s

adverse possession of the disputed parcel lacks merit.


        The superior court erred by granting the Kisslers' motion for summary judgment because,

as a matter of law, title of the disputed parcel vested in Gainey and ultimately transferred to the

Johnsons.   We reverse the superior court' s order granting summary judgment to the Kisslers and

remand for further proceedings. 3




3 Because we reverse the superior court' s order granting summary judgment in favor of the
Kisslers, we also reverse the superior court' s other orders predicated on the order granting
summary judgment: the order of ejectment and order granting injunctive relief.
     Furthermore, we decline the Johnson' request to grant summary judgment in their favor.
Although, as a matter of law, title to the disputed parcel was transferred to them, the Johnsons did
not file a cross -motion for summary judgment in the superior court. And, we reject the Johnsons'
contention that it is appropriate for them to make, and for us to grant, a cross- motion for summary
judgment for the first time on appeal. Accordingly, there is no basis for us to grant judgment in
the Johnsons favor.


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No. 45116 -6 -II



                                                ATTORNEY FEES


         The Johnsons argue that the superior court erred by granting attorney fees to the Kisslers.

We review a superior court' s decision regarding attorney fees for an abuse of discretion. Morgan

v. Kingen, 166 Wn.2d 526, 539, 210 P. 3d 995 ( 2009).


         RCW 7. 28. 083( 3) allows the superior court to award attorney fees to the prevailing party

on an adverse possession claim. Here, the superior court improperly granted the Kisslers' motion

for summary judgment; therefore, the Kisslers were not the prevailing party. Because the Kisslers

were not the prevailing party, the superior court erred by awarding the Kisslers their attorney fees.

         The Johnsons request attorney fees on appeal under RAP 18. 1 and RCW 4. 84. 185. RCW

4. 84. 185 allows an award of attorney fees to a party opposing a frivolous action or defense. The

Johnsons argue that the Kisslers' defensethat the Sizemores' purported agreement with the Halls


or   the Kisslers   defeated the Johnsons'      claim   for   adverse possession —was        frivolous and advanced


without a reasonable          basis.   A defense is frivolous if, considering the defense in its entirety, it

cannot    be   supported   by    any   rational argument      based in fact    or   law. Dave Johnson Ins., Inc. v.


Wright, 167 Wn.       App.     758, 785, 275 P. 3d 339,    review    denied, 175 Wn.2d 1008 ( 2012). Here, the


Kisslers   were     relying   on arguments    that   prevailed    in the   superior court.   Although incorrect, we

do not consider the Kisslers' position frivolous.


          The Kisslers     also request    attorney fees   on appeal.       However, given that the Kisslers have


not prevailed on appeal, they are not entitled to attorney fees.




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No. 45116 -6 -II



        We reverse the superior court' s order granting summary judgment in favor of the Kisslers

and all subsequent orders predicated on the superior court' s summary judgment order. We also

reverse the superior court' s order granting the Kisslers attorney fees. We remand for further

proceedings.




        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




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