                                                                                                            FILED
                                                                                                      COURT OF APPEALS
                                                                                                          DIVISION 1i

                                                                                                     2015 JAN 21 VI 9 0 L+
    IN THE COURT OF APPEALS OF THE STATE OF WASHING , 1
                                                  STA

                                            DIVISION II                                               BY

 ROBERT GUNN, a single man,                                                     No. 45177 -8 -II


                                 Respondent,


        v.



 TERRY L. RIELY and PETRA E. RIELY,                                        PUBLISHED OPINION
 husband and wife, and their marital community,
 and  all Persons Claiming Any Legal or
 Equitable Right, Title, Estate, Lien, or Interest
 in the Property Described in the Complaint
 Adverse to Plaintiff' s Title, or Any Cloud on
 Plaintiff's Title Thereto,


                                 Appellants.




       LEE, J. —   Terry and Petra Riely (the Rielys) appeal the trial court' s judgment awarding

damages to Robert Gunn for timber trespass           on   Gunn'   s   property. The Rielys argue that the trial


court erred when it (1) applied RCW 4.24. 630, the waste statute, instead of RCW 64. 12. 030, the


timber trespass statute; ( 2) did not consider the Rielys' affirmative defense that Oasis Well Drilling

 Oasis) was liable; and ( 3) did not consider whether the Rielys had an implied easement. Because


the trial court incorrectly applied the waste statute, RCW 4. 24.630, we reverse and remand for

further proceedings.


                                                     FACTS


        Gunn and the Rielys own adjacent property in the Storm King Ranch subdivision ( Storm

King) in Clallam County, Washington. Joel Sisson, one of the Storm King developers, purchased

the Storm    King land   and •subdivided   it into   eight parcels.       Parcels 1, 2,   and   3   share a common
No. 45177 -8 -II



corner.   Gunn     owns parcel   1   and   the Rielys   own parcel   2. The owners of parcel 3 are not parties


to this appeal.


          Sponberg    Lane   runs west     through Gunn' s property.      A grassy path ( an old logging road)

diverges from Sponberg Lane, and runs roughly parallel along the boundary line between Gunn' s

property and the Rielys' property, and ends near the common corner shared by parcels 1, 2, and 3.

The grassy path is entirely on Gunn' s property and is about 75 feet from the boundary line with

the Rielys' property.

          Between 2000 and 2009, the Rielys used the grassy path to. access parts of their property.

During that time, Gunn repeatedly told the Rielys that they did not have the right to use the grassy

path and    that   they   were not welcome on      his land.   The Rielys continued to tell Gunn that they

believed that they had a right to use the path. In the spring of 2008, Gunn went to the courthouse

to inspect the deeds and determined that the Rielys did not have an easement of record. Also in

2008, the Rielys asked to purchase an easement from Gunn, but he declined.


          In 2009, the Rielys hired Oasis Well Drilling to build a well on their property near the

common corner. The Rielys directed Oasis to use the grassy path for access to the Rielys' property.

When the Rielys directed Oasis to use the grassy path, they were aware that Oasis planned to cut

trees on the grassy path to get to the drill site. Oasis cut down approximately 107 of Gunn' s trees

along the grassy path to make room for the equipment needed to drill the well.

          Gunn filed his complaint for timber trespass in 2010 and his amended complaint in 2013.

In Gunn' s amended complaint, he alleged that the Rielys came onto his property and injured trees;

that the Rielys knew that they did not have the right to be on his property; and that Gunn was




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No. 45177 -8 -II



entitled to damages pursuant to the timber trespass statute, RCW 64. 12. 030, 1 or in the alternative,

the waste statute, RCW 4.24.630.2



1 RCW 64. 12. 030 states:


        Injury   to   or   removing trees,   etc. —    Damages.


        Whenever any person shall cut down, girdle, or otherwise injure, or carry off any
        tree, including a Christmas tree as defined in RCW 76.48. 020, timber, or shrub on
        the land of another person, or on the street or highway in front of any person's
        house, city or town lot, or cultivated grounds, or on the commons or public grounds
        of any city or town, or on the street or highway in front thereof, without 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.


 Reviser' s note omitted.)




2 RCW 4.24. 630 states:

         1) Every person who goes onto the land of another and who removes timber, crops,
        minerals, or other similar valuable property from the land, or wrongfully causes
        waste  or  injury to the land, or wrongfully injures personal property or
        improvements to real estate on the land, is liable to the injured party for treble the
        amount of the damages caused by the removal, waste, or injury. For purposes of
        this section, a person acts " wrongfully" if the person intentionally and unreasonably
        commits the act or acts while knowing, or having reason to know, that he or she
        lacks authorization to so act. Damages recoverable under this section include, but
        are not limited to, damages for the market value of the property removed or injured,
        and for injury to the land, including the costs of restoration. In addition, the person
        is liable for reimbursing the injured party for the party' s reasonable costs, including
        but   not     limited to investigative        costs    and reasonable      attorneys'   fees and other
        litigation-related costs.


         2) This section does not apply in any case where liability for damages is provided
        under      RCW 64. 12. 030,      79. 01. 756,         79. 01. 760,   79. 40. 070,   or where there is
        immunity from liability under RCW 64. 12. 035.

 Reviser' s note omitted.)



                                                                3
No. 45177 -8 -II



        In their answer to Gunn' s complaint, the Rielys stated that ( 1) they had " certain easement

rights" over the grassy path; and ( 2) Gunn' s injuries were caused by someone else not under the

control, supervision, or     direction   of   the Rielys.   For the first time in their trial brief, the Rielys


argued that Oasis was liable for the damage to the trees and that they held an implied easement

over the grassy path.

        The case was heard in a two -day bench trial. The parties stipulated to the value of the cut

trees ($ 153 total).


        At trial, Gunn moved in limine3 to exclude the Rielys' argument that Oasis was liable, and

to prevent the Rielys from bringing a quiet title action to establish an implied easement because

the Rielys did not plead these claims and Gunn did not have notice of these claims. With regard

to the argument that Oasis was liable, the Rielys argued that while they did not specifically plead

it or disclose it in discovery, Gunn was on notice that the Rielys would argue that Oasis was liable

because Gunn knew that Oasis built the           well.   The trial court ruled that it would allow the Rielys


to present evidence relevant to the wrongfulness of the tree cutting, but the fault of a nonparty

must be affirmatively pleaded and because it was not, the trial court would not determine whether

Oasis was liable.

           With regard to the implied easement issue, the Rielys argued that their pleadings implied


that they would bring a quiet title action because their affirmative defense was based on their belief

that they held an easement. The trial court ruled that the Rielys could prove their defense, but that




3
    Gunn   characterized   his   motion as a " motion    in limine I   suppose, or a clarification."   Verbatim
Report of Proceedings ( VRP) at 6.



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No. 45177 -8 -II



they could not bring a quiet title action because it had not been pleaded. The Rielys then requested
a continuance to amend their pleadings to add a claim for a quiet title action based on an implied

easement, and the trial court denied the request.


        The trial court found the Rielys liable for damages for timber trespass to Gunn under the

waste statute, RCW 4. 24. 630. The trial court ruled that:

                   The   essence of      the   claim   here is damage to the land,             not   to the trees.   The

        value of the trees is the smallest component of damages and trebling it is really
        useless in terms of restoring to Mr. Gunn what he has lost. That doesn' t do it, can
        not [ sic] do it.


                   So I do not find that the timber trespass statute [ RCW 64. 12. 030] is designed
        to or in effect does provide liability for damages that are suffered in this case.

Verbatim Report       of   Proceedings ( VRP)          at   238 -39.    The court awarded the following damages:

 1, 359 ( the   value      of   the    cut   trees, $ 153,    trebled;      and    cost   of   restoration, $    300, trebled),


investigative   costs    for the survey      work ($3,   294),   costs ($ 418. 60), and        attorney fees ($ 17, 500). The


trial court also cleared Gunn' s title of any claim of easement of record over the grassy path. The

Rielys moved for reconsideration, arguing that the applicability of the timber trespass statute

precluded a damage award under the waste statute. The trial court denied the motion, stating that

awarding damages           under      RCW 64. 12. 030        would     be   an "   improper     application"    of the statute.


Clerk' s Papers at 47. The Rielys appeal.

                                                         ANALYSIS


        The Rielys argue that the trial court erred by ( 1) awarding damages under the waste statute

 RCW 4. 24. 630)     and not     the timber trespass         statute ( RCW     64. 12. 030); ( 2)     refusing to consider the

Rielys' argument that Oasis was liable; and ( 3) determining that the Rielys failed to plead a quiet




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No. 45177 -8 -II



title action.4 We hold that ( 1) the trial court erred when it awarded damages under the waste

statute, RCW 4.24. 630, rather than under the timber trespass statute, RCW 64. 12. 030; and ( 2) the

trial court did not abuse its discretion in not considering the Rielys' argument that Oasis was liable.

We do not address the Rielys' argument that the trial court erred in determining the Rielys failed

to plead a quiet title claim.


A.       ACTIONS UNDER RCW 4.24. 630 AND RCW 64. 12. 030

         The Rielys argue that the trial court improperly awarded damages under the waste statute

because the waste statute does not allow for recovery when the plaintiff is entitled to damages

under the timber trespass statute. We agree.

         The trial court awarded damages under the waste statute because it found that the timber

trespass   statute would        be "     useless      in terms    of   restoring to Mr. Gunn    what    he has lost."    VRP at


239.    However, we determine the proper application of a statute based on carrying out the

legislature'    s   intent,   not   by   the desired        amount of    damages. See Jongeward         v.   BNSF Ry. Co., 174


Wn.2d 586; 592, 278 P. 3d 157 ( 2012).                          As a matter of law, the trial court erred by awarding

damages under the waste statute because the waste statute does not provide damages when the

timber trespass statute does.


         Under which statute Gunn can recover damages is a question of statutory interpretation.

We     review   the meaning          of a statute       de    novo.    Jongeward, 1.74 Wn.2d      at   592.    Our fundamental


objective   is to     ascertain and           carry   out   the legislature'   s   intent. Jongeward, 174 Wn.2d     at   592. " If




  The Rielys         assign error        to   numerous       findings   of   facts.   However, they do not offer arguments
regarding those         findings. The essence of their argument concerns the legal arguments addressed
in this opinion.

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No. 45177 -8 -II




a statute' s meaning is plain on its face, we must `give effect to that plain meaning as an expression

of   legislative intent. '   Jongeward, 174 Wn.2d at 594 ( quoting Dep' t of Ecology v. Campbell &

Gwinn, LLC, 146 Wn.2d 1, 9, 43 P. 3d. 4 ( 2002)). "             If a statute remains ambiguous after a plain


meaning analysis, it is appropriate to resort to interpretive aids, including canons of construction

and case    law." Jongeward, 174 Wn.2d at 600.


          Here, we must determine whether damages are provided for under the timber trespass

statute, RCW 64. 12. 030. If damages are provided for under the timber trespass statute, then the

                                                        5
waste statute,    RCW 4. 24. 630, does   not   apply.


          The waste statute, RCW 4. 24. 630, reads as follows:


           1) Every person who goes onto the land of another and who removes timber, crops,
          minerals, or other similar valuable property from the land, or wrongfully causes
          waste     injury to the land, or wrongfully injures personal property or
                   or

          improvements to real estate on the land, is liable to the injured party for treble the
          amount of the damages caused by the removal, waste, or injury....           Damages
          recoverable under this section include, but are not limited to, damages for the
          market value of the property removed or injured, and for injury to the land,
          including the costs of restoration. In addition, the person is liable for reimbursing
          the injured party for the party' s reasonable costs, including but not limited to
          investigative costs and reasonable attorneys' fees and other litigation -related costs.


           2) This section does not apply in any case where liability for damages is
          provided under RCW 64. 12. 030... .




5 The Rielys heavily rely on International Raceway, Inc. v. JDFJ J Corp, 97 Wn. App. 1, 970
P. 2d 343 ( 1999),      for their argument that the timber trespass statute, RCW 64. 12. 030, applies and
not    RCW 4. 24. 630.       However, JDFJ is distinguishable.        There, damages were awarded under
RCW 64. 12. 030. After trial, JDFJ moved for reconsideration, and for the first time, alleged that
the damages should be awarded under RCW 4. 24. 630 instead of RCW 64. 12. 030. JDFJ, 97 Wn.
App. at 5. The court said that RCW 64. 12. 030 " encompasses the conduct of [ International
Raceway, Inc.] in this case" and the defendant cannot propose a new theory of the case after an
unsatisfactory judgment. JDFJ, 97 Wn. App. at 7.
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No. 45177 -8 -II



 Emphasis     added) ( reviser' s note omitted).           RCW 4.24. 630( 2) explicitly excludes its application

where liability for damages is provided under RCW 64. 12. 030, the timber trespass statute. There
are no reported cases where Washington courts have applied RCW 4.24.630 to timber trespass.6

         The timber trespass statute, RCW 64. 12. 030, reads as follows:


         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 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. E7'

         In discussing the appropriate application of the timber trespass statute, our Supreme Court

has explained the timber trespass statute:


                 In each of [ Washington' s] cases construing the statute over the last 142
         years, the defendant entered the plaintiff' s property and committed a direct trespass
         against the plaintiff' s timber, trees, or shrubs, causing immediate, not collateral,

6                                                                                               Senate Bill 6080.   The
    In 1994, the Washington legislature            enacted    RCW 4. 24.630        as part of


parties have not identified any reported cases applying RCW 4.24.630 where the only damage was
to timber, and we have been unable to find any.

         The legislative history reveals that when the Washington State Senate was debating RCW
4. 24. 630, Senator Owen explained that:


          T] he idea is to deal with the tremendous amount of damage that we are having
         with people     coming in       and   shooting up     signs,   shooting up   restrooms.    In the case

         of forest lands, shooting up trees, taking four -wheel drives and running them all
         over [ agricultural]     land   and    ripping up the     ground.   You know a variety of things
         like that is really what we are getting after in this situation.

SENATE JOURNAL, 53rd     Leg., Reg. Sess., at 154 ( Wash. 1994). Therefore, it appears that there
could be a situation, under circumstances of waste or vandalism, where a court may find that RCW
4.24.630 appropriately applies to a dispute over comprehensive property damage that includes
damage to property and removal of timber, rather than a dispute where the sole issue is timber
trespass.


7 RCW 76.48. 020 has been recodified as RCW 76.48. 021, pursuant to Laws of 2009, ch. 245, §
29.



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No. 45177 -8 -II



         injury.       Examples include Birchler, 133 Wn.2d at 108, where the defendant
         encroached on plaintiffs' properties and removed trees and shrubbery; Guay, 62
         Wn.2d at 473, where the defendants cut a swath on plaintiffs property, destroyed
         trees, brush and shrubs, and denuded the strip; Mullally, 29 Wn.2d 899, where the
         defendants entered a disputed area and destroyed trees; Luedinghaus v. Pederson,
         100 Wash. 580, 171 P. 530 ( 1918), where the defendant trespassed upon plaintiffs
         land and removed standing timber; Gardner, 27 Wash. at 358, where the defendants
         entered plaintiff' s land, cut down and converted into shingle bolts and removed
         plaintiff's cedar trees; Maier v. Giske, 154 Wn. App. 6, 21, 223 P. 3d 1265 ( 2010),
         where the defendant entered a disputed area and destroyed trees and plants. J8'

Jongeward, 174 Wn.2d             at   603.     The cases interpreting RCW 64. 12. 030 are clear that it governs

direct trespass against a plaintiff' s timber, trees, or shrubs.


         Here, the dispute            arises   from the Rielys cutting 107 trees        on   Gunn' s property.           The


testimony and evidence at trial established that the grassy path was on Gunn' s property; that Gunn

did not welcome the Rielys onto his property; and that Oasis, at the Rielys' direction, entered

Gunn' s property and cut down trees. The damages awarded were for the value and cleanup of the

cut trees, surveying costs related to the cut trees, court costs, and attorney fees. Beyond the value

of the trees, there was no evidence or damages awarded related to waste or damage to the land.

The damage fits squarely within the bounds ofthe timber trespass statute. Thus, the timber trespass

statute provides liability for damages in this case and precludes application of the waste statute.

         Gunn contends that the trial court properly awarded damages under the waste statute

because the "        real   basis for this      case [ was]   to bar [ the] Rielys'   use   of   Gunn'   s   property"   and




emotional stress that would not be provided for under the timber trespass statute. Br. of Resp' t at

 12.   Gunn' s argument is that the Rielys purposefully disregarded his property rights, invaded his



8
    Birchler   v.   Castello Land Co., 133 Wn.2d 106, 942 P. 2d 968 ( 1997);            Guay v. Wash. Natural Gas
 Co., 62 Wn.2d 473, 383 P. 2d 296 ( 1963);              Mullally v. Parks, 29 Wn.2d 899, 190 P.2d 107 ( 1948);
 Gardner v. Lovegren, 27 Wash. 356, 67 P. 615 ( 1902).

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No. 45177 -8 -II



privacy, and interfered with his use and enjoyment of his own land, and that this disregard

culminated in the cutting of his trees. And, he argues that because of this, the trial court properly

awarded damages under the waste statute because the real injury was more significant than the cut

trees.   However,    we    determine the      application of statutes    based   on   the   plain   language.   Here, as


explained above, based on the plain language, the timber trespass statute provides liability for

damages.


         Further, to the extent that Gunn also argues that the timber trespass statute is restricted to

trespass     against commercial         logging   operations,   he is incorrect.   Timber trespass can occur on


residential    property    and against     trees that   are not part of commercial          logging    operations.   See


Sherrell v. Selfors, 73 Wn. App. 596, 602 -03, 871 P. 2d 168 ( 1994).

            The trial court erred in awarding damages under RCW 4.24.630, the waste statute.

Accordingly, we remand to determine damages under RCW 64. 12. 030, the timber trespass statute.

B.          WAIVER OF AFFIRMATIVE DEFENSE: FAULT OF A NONPARTY


            The Rielys argue that the trial court erred by not considering their affirmative defense that

Oasis,   a   nonparty,   was    liable.   For the first time in their trial brief, the Rielys argued that Oasis

was   liable for the     cut   trees.   Gunn made an oral motion at trial to exclude the defense, asserting

that the Rielys did not plead or disclose the defense, and that arguing it for the first time in the trial

brief was untimely. The trial court ruled that the Rielys were required to affirmatively plead an


at -fault    nonparty.   Because Oasis was a nonparty and the Rielys did not affirmatively plead that

Oasis was liable, the trial court would not consider the defense. Effectively, the trial court found

that the Rielys waived the affirmative defense by not pleading it.




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No. 45177 -8 -II



          We review the trial court' s decision to strike an affirmative defense based on waiver for an

abuse of    discretion. Oltman       v.   Holland Am. Line USA, Inc., 163 Wn.2d 236, 244, 178 P. 3d 981,


cert.   dismissed, 554 U.S. 941 ( 2008).         The trial court abuses its discretion if its decision is based

on untenable grounds or untenable reasons.              First-Citizens Bank & Trust Co. v. Reikow, 177 Wn.


App. 787, 797, 313 P.2d 1208 ( 2013).

          Washington is a notice pleading state and requires that a party give the opposing party fair

notice of    the   affirmative   defense in its     pleadings.   Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn.

App.     18, 23, 974 P. 2d 847 ( 1999).       CR 8( c) requires an affirmative defense to be pleaded in the


party'   s answer.    CR 12( i) provides that a defendant' s claim that a nonparty is at fault for fault -

allocation purposes is an affirmative defense that must be affirmatively pleaded, and that the

  i] dentity of any nonparty claimed to be at fault, if known to the party making the claim, shall

also    be affirmatively      pleaded."     Thus,   under   CR 8( c)   and   CR 12( i), " a defendant must plead


nonparty fault       as an affirmative      defense."    Estate of Dormaier v. Columbia Basin Anesthesia,

PLLC, 177 Wn. App. 828, 858, 313 P. 3d 431 ( 2013);               Henderson v. Tyrrell, 80 Wn. App. 592, 624,

910 P. 2d 522 ( 1996). "       A party who does not plead a cause of action or theory of recovery cannot

finesse the issue by later inserting the theory into trial briefs and contending it was in the case all

along."    Dewey, 95 Wn. App. at 26. Accordingly, affirmative defenses are waived unless they are

pleaded or tried with the parties' express or implied consent. Henderson, 80 Wn. App. at 624. A

defendant may also waive an affirmative defense " if the defendant' s assertion of the defense is

inconsistent       with   the defendant' s previous     behavior."     Lybbert v. Grant County, 141 Wn.2d 29,

38 -39, 1 P. 3d 1124 ( 2000).



                                                                             r



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No. 45177 -8 -II



         Here, the Rielys         acknowledged        that   they did   not plead   that Oasis   was   liable. The Rielys


did not raise the argument that they blamed Oasis for the damage until their trial brief in 2013,

despite Gunn explicitly asking through discovery in 2010 whether they intended to claim that a

nonparty    was    liable.    The Rielys argue that they disclosed the existence of Oasis to Gunn in

interrogatories; however,           they   mischaracterize       that disclosure.     The Rielys disclosed that Oasis


was the company that they hired to construct the well and that they were on Gunn' s property, but

they did not disclose that they intended to argue that Oasis was liable for the damages to Gunn' s

property. Moreover, the argument that Oasis was liable is inconsistent with the Rielys' answer to

discovery. Gunn posed the following question to the Rielys in discovery:
         27. Do you claim that there is some person or entity who is not a party to this
         lawsuit within the meaning of RCW 4.22. 070 whose is [ sic] at fault for any of
         Plaintiff' s   alleged     injuries   or   damages? If so, as to each state the name ... .


Ex. 1 ( Pl.' s   Interrog.   at   24). In response, the Rielys answered:


         Interrogatory       No. 27: Not known            at   this time —except
                                                               possibly for Joel Sisson if
         he made any material misrepresentations rather than unintentional or mistaken in
         good faith.


Ex. 1 ( Def.'s answers, at 7). 9

         Contrary to Washington' s notice pleading rules, Gunn was not on notice that the Rielys

intended to argue that Oasis was at fault. Moreover, the Rielys' interrogatory answers did not put

Gunn    on notice    that the Rielys intended to             argue    that Oasis   was at   fault. The Rielys' claim that


Oasis was at fault was raised for the first time in their trial brief, and hence, it was untimely.

Therefore, the trial court did not abuse its discretion in not considering the defense.




9 Joel Sisson was one of the developers of Storm King; Gunn and the Rielys purchased their
respective parcels from Sisson.

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No. 45177 -8 -II



C.        IMPLIED EASEMENT CLAIM


          The Rielys claim that the trial court erroneously granted Gunn' s motion in limine and

should have allowed them to bring a quiet title action. 10 After noting that the trial court erred in

its preliminary evidentiary ruling, the Rielys argue that the trial court should have found that they
hold an easement by implication over Gunn' s grassy path instead of assuming that the Rielys were

trespassing. The Rielys base this argument on the testimony and evidence shown at trial.

          The Rielys argument is essentially that because they can legally establish an implied

easement, they should have been allowed to try to legally establish an implied easement. 11 We
disagree.


          The issue before us is whether the trial court erred in granting Gunn' s motion in limine,

precluding the Rielys from proceeding with a quiet title action based on an implied easement. We

review a trial court' s grant of a motion in limine for an abuse of discretion. Medcalf v. Dep' t of

Licensing, 83 Wn. App. 8, 16, 920 P.2d 228 ( 1996) alld, 133 Wn.2d 290, 944 P. 2d 1014 ( 1997).

However, the Rielys do not provide any meaningful argument or citation to authority in support

of this issue. The Rielys argue that the trial court should have quieted title in their favor based on

an    implied   easement.   The Rielys do not address the issue of whether the trial court abused its




10
     The Rielys   assign error   to   numerous   findings   of   fact.   However, they do not offer arguments
regarding those findings.        The essence of their argument is the legal arguments addressed in this
opinion.




11 An easement is an interest in land, and an express grant of an easement is a conveyance; thus,
the grant or reservation of an easement must be established in a deed. Gold Creek N. Ltd. P'ship

v. Gold Creek Umbrella Ass' n, 143 Wn. App. 191, 200 -01, 177 P. 3d 201 ( 2008). However, despite

the lack of written instruments, easements can be implied by the facts and circumstances
surrounding the land conveyance. Woodward v. Lopez, 174 Wn. App. 460, 469, 300 P.3d 417
 2013).


                                                        13
No. 45177 -8 -I1



discretion in ruling that the Rielys failed to               plead a quiet   title action.   Accordingly, we do not

address   this   argument.    RAP 10. 3(    a)(   6);   Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,

809, 828 P. 2d 549 ( 1992).

          Moreover, to the extent that the Rielys' argument can be characterized as the trial court

erred when it refused to allow them to present the affirmative defense of their good -faith belief

that   they held   an easement,      this   also    lacks   merit.    The trial court allowed the Rielys to present


evidence supporting their implied easement defense. Joel Sisson testified that he intended for the

Rielys' parcel to have access to the grassy path, but that the attorney who drafted the easements

 dropped the ball"      and   did   not   include       an easement   for the Rielys'   parcel.   VRP at 154. Further,


Sisson testified that he " was always under the assumption" that he told the Rielys they could use

the grassy   path.    VRP     at   156.   Additionally, the Rielys testified that before they purchased the

property, they discussed access to the grassy path with Sisson. The Rielys also testified that they

believed that the grassy path had been used to access the property before the land was subdivided.

Therefore, the Rielys' characterization that the trial court did not allow them to present their

implied easement defense is inaccurate; the record belies the argument that the trial court

prohibited their presentation of their affirmative defense.


          Additionally, the Rielys ask us to contemplate a hypothetical situation where the trial court

did not refuse to consider their claim to quiet title, then actually considered it, and then legally

established      that the Rielys have       an   implied    easement.    And then, in that situation, they ask us to

consider "   could there be a trespass if they had an underlying common law right of use and

maintenance of       the implied    easement ?"          Br. of Appellant at 4. They further ask us to decide their




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No. 45177 -8 -II



quiet title action, and then if we decide in their favor, also decide whether the facts would provide

for mitigation of damages.

        This hypothetical scenario requires us to ignore the fact that the trial court did not consider

whether the Rielys could establish an easement by implication. The trial court explicitly said that

it was not considering the quiet title action. The Rielys are attempting to litigate an issue that was

not pleaded or litigated below. Their arguments are speculative and would render any decision

advisory. We do      not render   advisory    opinions.    Wash. Beauty Coll., Inc. v. Huse, 195 Wash. 160,

164 -65, 80 P. 2d 403 ( 1938);       see Kitsap County Prosecuting Attorney' s Guild v. Kitsap County,

156 Wn.      App.   110, 122, 231 P. 3d 219 ( 2010) (           noting that this court does not give advisory

opinions).



D.      ATTORNEY FEES


        The Rielys     argue   that the trial   court erred when        it   awarded   attorney fees to Gunn.   We


review the award of attorney fees de novo, and review the amount of attorney fees for abuse of

discretion. Gander     v.   Yeager, 167 Wn.     App. 638, 647,       282 P. 3d 1100 ( 2012). Here, the trial court

                                                               12
awarded   attorney fees      under    the   waste   statute.        Because we are reversing the trial court' s

judgment, Gunn is not entitled to attorney fees unless the trial court determines that such fees are

appropriate under the timber trespass statute. 13




12 RCW 4.24. 630.

13 RCW 64. 12. 030.

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No. 45177 -8 -II




               Gunn requests an award of attorney fees on appeal pursuant to RCW 4.24. 630 and RAP

18. 1(   a).    However, because we have determined that RCW 4.24. 630 does not apply, his request is

denied.


               To the extent that the Rielys request attorney fees on appeal, this request is not properly

presented.         RAP 18. 1( b) "      requires a party to include a separate section in her or his brief devoted

to the request" for appellate attorney fees. Stiles v. Kearney, 168 Wn. App. 250, 267, 277 P.3d 9

 2012),        review     denied, 175 Wn.2d 1016 ( 2012).                   This requirement is mandatory, and " requires

more      than a     bald     request   for attorney fees         on appeal."     Stiles, 168 Wn.   App.   at   267.   Here, the


Rielys         assert,   in   another   section      of   their   brief, that they " should be entitled to an award of


reasonable                      s   fees both   at   trial and    for the   proceedings   before the Court   of   Appeals."   Br.
                   attorney'


of   Appellant       at   48.   The Rielys have not met the mandatory requirements for requesting attorney

fees on appeal, and we deny the request.

               We reverse the judgment and remand for further proceedings consistent with this opinion.




 We      concur:
