                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           January 13, 2020



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 SKIPPER WILLIAM KUZIOR AND                                           No. 51913-5-II
 IMMEDIATE FAMILY,

                                Appellant,
                                                               UNPUBLISHED OPINION
         v.

 TACOMA SCHOOL DISTRICT LINCOLN
 TREE FARM,

                                Respondent.



       MAXA, C.J. – Skipper William Kuzior appeals the trial court’s order granting summary

judgment, which dismissed Kuzior’s claims against the Tacoma School District, quieted title to

property on the District’s Lincoln Tree Farm, and stated that Kuzior did not hold an easement on

the Lincoln Tree Farm.

        We hold that the trial court did not err in granting summary judgment because Kuzior

failed to present evidence that raised a genuine issue of material fact regarding title to the

disputed portion of Lincoln Tree Farm property and the existence of an easement on that

property. We decline to consider Kuzior’s apparent arguments that the District committed a

“taking” of his property, that the District’s attorney committed slander of title regarding his

easement, and that he is entitled to a prescriptive easement over the Lincoln Tree Farm.

Accordingly, we affirm the trial court’s grant of summary judgment in favor of the District.
No. 51913-5-II


                                              FACTS

       Kuzior owns property located in Graham. Kuzior’s property is located north of property

the District owns, which is known as the “Lincoln Tree Farm.”

       In October 2017, Kuzior filed a lawsuit against the District. He alleged that a contractor

for the Lincoln Tree Farm had illegally harvested five acres of timber that was located on his

property and had destroyed a gate, a fence, and a lean-to on his property. Kuzior also claimed

that the District through fraudulent surveys had stolen 1,102 feet from his property. He

requested payment for the timber that was harvested, replacement of the lean-to that was

destroyed, clear demarcation of the property line between his property and the Lincoln Tree

Farm, and access through an owned easement on the Lincoln Tree Farm property.

       The District moved for summary judgment, arguing that there was no genuine dispute

regarding the location of the property line, that the conduct Kuzior challenged occurred on the

Lincoln Tree Farm property, and that Kuzior had no easement rights on the Lincoln Tree Farm

property. The District requested that the court dismiss all of Kuzior’s claims and quiet title to the

Lincoln Tree Farm property.

       The District relied on the declaration of Daniel Roupe, a licensed surveyor. Roupe

reviewed the title reports and existing surveys for the two properties, and he surveyed the

boundary line between the properties. Roupe determined that the boundary line he located was

accurate to within three inches of the monuments placed according to a recorded survey

conducted by Wilsey & Ham, Inc. Based on this boundary line, Roupe concluded that the

challenged timber harvest, the removed gate, the lean-to, and a sacred fir tree Kuzior referenced

in his complaint all were located on the Lincoln Tree Farm property. Roupe also determined

Kuzior did not have any recorded easement burdening any portion of the Lincoln Tree Farm.




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No. 51913-5-II


       Kuzior filed a declaration with attached exhibits in opposition to summary judgment.

The District moved to strike Kuzior’s declaration because it was not timely submitted and he was

not qualified to express opinions on surveying, boundary, or easement issues. The trial court

struck Kuzior’s declaration.

       At oral argument, Kuzior agreed to the dismissal of his claims relating to the timber

harvest and the destruction of the gate and lean-to. Kuzior’s opposition to summary judgment

was limited to quieting title to the property at issue and the existence of an easement.

       During the hearing on summary judgment, the District relied in part on the Wilsey &

Ham survey. The court considered a color coded version of that survey submitted by the

District, which Kuzior already had in his possession. Kuzior did not object to the court

considering that version of the survey.

       The trial court granted summary judgment in the District’s favor, dismissing all of

Kuzior’s claims and quieting title to the Lincoln Tree Farm property in favor of the District

consistent with the Wilsey & Ham survey. The court also concluded that Kuzior did not own or

benefit from any easement over any portion of the Lincoln Tree Farm. Kuzior appeals the trial

court’s summary judgment order.

                                            ANALYSIS

A.     GRANT OF SUMMARY JUDGMENT

       Kuzior appears to argue that the trial court erred in granting summary judgment in

dismissing his quiet title and easement claims on summary judgment. The District contends that

there is no support in the record for either of Kuzior’s claims. We agree with the District.




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No. 51913-5-II


        1.   Summary Judgment Standard

        We review a trial court’s decision on a summary judgment motion de novo. Zonnebloem,

LLC v. Blue Bay Holdings, LLC, 200 Wn. App. 178, 182, 401 P.3d 468 (2017). Summary

judgment is appropriate if there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. Id.; CR 56(c). A genuine issue of material fact exists if

reasonable minds could disagree on the conclusion of a factual issue. Zonnebloem, 200 Wn.

App. at 182-83. We view all facts and reasonable inferences drawn from those facts in the light

most favorable to the nonmoving party. Id. at 182.

        The moving party bears the initial burden of proving that there is no genuine issue of

material fact. Id. at 183. Once a moving defendant shows that there is an absence of evidence to

support the plaintiff’s case, the burden shifts to the plaintiff to present specific facts that rebut the

defendant’s contentions and show a genuine issue of material fact. Id.

        2.   Quiet Title Claim

        Kuzior appears to argue that the trial court erred in dismissing his quiet title claim to a

portion of the Lincoln Tree Farm property because there remain genuine issues of material fact

as to the location of the property line between his property and the Lincoln Tree Farm property.

We disagree.

        A quiet title action is equitable and is designed to resolve competing ownership claims to

property. Bavand v. OneWest Bank, FSB, 176 Wn. App. 475, 502, 309 P.3d 636 (2013). RCW

7.28.010 states,

        Any person having a valid subsisting interest in real property, and a right to the
        possession thereof, may recover the same by action in the superior court of the
        proper county, to be brought against the tenant in possession; if there is no such
        tenant, then against the person claiming the title or some interest therein, and may
        have judgment in such action quieting or removing a cloud from plaintiff’s title.




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No. 51913-5-II


RCW 7.28.120 further provides that in a quiet title action, “[t]he plaintiff ... shall set forth in his

or her complaint the nature of his or her estate, claim, or title to the property, and the defendant

may set up a legal or equitable defense to plaintiff’s claims; and the superior title, whether legal

or equitable, shall prevail.”

        Here, Kuzior claimed that the District’s timber harvest and removal of a metal gate and a

lean-to all occurred on his property. But the District presented evidence from Roupe that the

boundary line located on the Wilsey & Ham survey was accurate, and that based on that

boundary line the harvested timber, gate, and lean-to all were located on the Lincoln Tree Farm

property. That evidence shifted the burden to Kuzior to present specific facts that would create a

genuine issue of material fact as to the ownership of the property at issue. Zonnebloem, 200 Wn.

App. at 183.

        Kuzior presented no such evidence. The only evidence he presented in opposition to

summary judgment was his declaration. But the trial court struck that declaration and the

attached exhibits. Therefore, Kuzior did not create a genuine issue of fact.

        On appeal, Kuzior appears to claim that the District removed 1,102 linear feet from his

property through a boundary line adjustment or adverse possession. But there is no evidence in

the summary judgment record that supports this claim. Kuzior also claims that the Wilsey &

Ham survey and the Roupe survey were fraudulent and invalid for various reasons. But again,

there is no evidence in the summary judgment record that supports these claims.

        Finally, Kuzior seems to argue that the trial court was confused by a color coded version

of the Wilsey & Ham survey that the District submitted during oral argument. But Kuzior did

not object to the court’s consideration of this exhibit.




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No. 51913-5-II


        Kuzior’s quiet title claim was premised on some degree of ownership of the Lincoln Tree

Farm. But Kuzior failed to make a showing sufficient to establish any genuine factual issues

regarding his interest in or right to possess the property. Therefore, we affirm the trial court’s

grant of summary judgment in favor of the District quieting title to the Lincoln Tree Farm

property.

        3.   Easement Claims

        Kuzior appears to argue that he holds an easement over part of the Lincoln Tree Farm

property. The District contends that this claim is not supported by the record. We agree with the

District.

        “An easement is a nonpossessory right to use the land of another.” McColl v. Anderson,

6 Wn. App. 2d 88, 92, 429 P.3d 1113 (2018). The easement holder has a property interest in the

land and the easement represents a burden on the land. Id. Easements may be created by written

instrument or by adverse possession. 810 Props. v. Jump, 141 Wn. App. 688, 696, 170 P.3d

1209 (2007).

        Here, Kuzior claimed that he had an easement on the Lincoln Tree Farm property. But

the District presented evidence that the title report showed that Kuzior did not own or benefit

from any easement on that property. That evidence shifted the burden to Kuzior to present

specific facts that would create a genuine issue of material fact as to the existence of an

easement. Zonnebloem, 200 Wn. App. at 183.

        Kuzior presented no such evidence. The only evidence he presented in opposition to

summary judgment was his declaration. But the trial court struck that declaration and the

attached exhibits. Therefore, Kuzior did not create a genuine issue of fact.




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No. 51913-5-II


       On appeal, Kuzior makes vague claims about the existence of certain easements. But he

does not identify these alleged easements with particularity and or show that they were on the

Lincoln Tree Farm property.

       Kuzior failed to make a showing sufficient to establish any genuine fact issues regarding

his ownership of an easement on the Lincoln Tree Farm property. Therefore, we affirm the trial

court’s grant of summary judgment in favor of the District on the issue of the existence of an

easement on the Lincoln Tree Farm property.

B.     UNPRESERVED CLAIMS

       For the first time on appeal, Kuzior appears to argue that (1) the District committed a

“taking” of his property without paying just compensation; (2) the District’s attorney committed

slander of title regarding his easement; and (3) he is entitled to a prescriptive easement on the

Lincoln Tree Farm. We decline to consider these arguments.

       First, Kuzior did not allege in his complaint that the District committed a “taking” of his

property. The failure to plead a cause of action precludes a party from raising that cause of

action for the first time on appeal. See Reagan v. Newton, 7 Wn. App. 2d 781, 801-02, 436 P.3d

411, review denied, 193 Wn.2d 1030 (2019). In any event, this claim appears to be based on the

allegation that the District somehow moved the property boundary. As noted above, no evidence

in the summary judgment record supports this allegation.

       Second, Kuzior now claims that the District’s attorney committed slander of title in

conjunction with oral argument of the summary judgment motion. But he did not raise this claim

or move to amend his complaint at the time. Once again, this failure precludes him from raising

this claim for the first time of appeal. Reagan, 7 Wn. App. 2d at 801-02. In any event, there is

no evidence in the summary judgment record that supports a slander of title claim.




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No. 51913-5-II


          Third, regarding a prescriptive easement, Kuzior did allege the existence of an easement

in his complaint. But he did not plead or argue in the trial court that he was entitled to an

easement by prescription. We generally will not consider an argument raised for the first time on

appeal. Cameron v. Atl. Richfield Co., 8 Wn. App.2d 795, 811, 442 P.3d 31 (2019). In any

event, no evidence in the summary judgment record supports a finding of a prescriptive

easement.

C.        ATTORNEY FEES ON APPEAL

          The District requests that we award reasonable attorney fees on appeal, arguing that

Kuzior’s appeal is frivolous. We decline to award attorney fees to the District.

                                            CONCLUSION

          We affirm the trial court’s order granting summary judgment dismissal of Kuzior’s

claims.

          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.



                                                        MAXA, C.J.

 We concur:



 MELNICK, J.




 GLASGOW, J.




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