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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARCELLUS BUCHHEIT and
LISA BUCHHEIT-EKDAHL,                           No. 72548-3-1


                     Respondents,               DIVISION ONE

             v.

                                                PUBLISHED OPINION
CHRISTOPHER J. GEIGER,
                                                FILED: February 16, 2016
                    Appellant.
                                        J

       Becker, J. — This is an appeal from an antiharassment order issued to

protect the owners of a lakeside lot from alleged abusive conduct and trespass

by their upland neighbor. The petitioners dispute their neighbor's claim to an

easement over their lakeside property. Because the neighbor's claim is

cognizable, the dispute is not one that can be resolved by an antiharassment

order issued under chapter 10.14 RCW. The order is reversed.

      The parties own adjoining parcels of property on the north side of Lake

Stevens. They acquired their respective lots in 2013 from Kenneth and Laurie

Withrow. Appellant Christopher Geiger owns and lives on lot 1, the upland lot.

Lot 2, a waterfront parcel south of Geiger's, is owned by respondents Marcellus

Buchheit and his wife, Lisa Buchheit-Ekdahl. The Buchheit lot has a dock, boat
No. 72548-3-1/2



ramp, and bulkhead. The Buchheits plan to construct a residence on their lot in

the future. In the meantime, they use the lot for recreation.

       Geiger began to use lot 2 without the permission of the Buchheits. Among

other things, he affixed a floating dock to the Buchheit property, stored personal

items on their property, and walked across their property to go between his dock

and his home. When the Buchheits confronted him about trespassing, he

claimed to have an easement.

       The Buchheits filed a petition for an antiharassment order of protection

under chapter 10.14 RCW. The petition alleged that Geiger had ignored their

repeated requests not to trespass and that he was intimidating and aggressive in

his conversations with Buchheit-Ekdahl. The petition asked the court to order

Geiger to stay off their lot and their dock.

       Chapter 10.14 RCW creates a cause of action for an order of protection in

cases of unlawful harassment. The chapter "is intended to provide victims with a

speedy and inexpensive method of obtaining civil antiharassment protection

orders preventing all further unwanted contact between the victim and the

perpetrator." RCW 10.14.010. The authority of the court to issue an

antiharassment order is set forth in RCW 10.14.080. The court has "broad

discretion to grant such relief as the court deems proper." RCW 10.14.080(6).

The statute limits the court's discretion in several ways. One limitation is

designed to ensure that an antiharassment order is not used to resolve a dispute

involving real property to which the respondent has a "cognizable claim":

       The court in granting an ex parte temporary antiharassment
       protection order or a civil antiharassment protection order, shall not
No. 72548-3-1/3



       prohibit the respondent from the use or enjoyment of real property
       to which the respondent has a cognizable claim unless that order is
       issued under chapter 26.09 RCW or under a separate action
       commenced with a summons and complaint to determine title or
       possession of real property.

RCW 10.14.080(8).

       Geiger moved to dismiss the antiharassment petition under RCW

10.14.080(8). He submitted a document that he argues gives him a cognizable

claim to a 23-foot-wide easement over the Buchheit property for lake access.

      The document in question, a "Declaration of Easement and Restrictions,"

was recorded in the chain of title before the Buchheits purchased lot 2. The

declaration identifies lot 1 (Geiger) as the dominant tenement and lot 2

(Buchheit) as the servient tenement. The document is carelessly drafted. The

easement granted for the benefit of lot 1 is access over a 23-foot-wide strip of

land on the easterly edge of lot 1, Geiger's own lot. The commissioner who

presided over the hearing on the antiharassment petition was not convinced

Geiger had a valid easement:

      Cutting to the chase, it seems to me the pivotal issue right now is
      how does this easement, if there is one, question get resolved. And
      at this point it is not clear that the respondent, in my opinion, has an
      easement. I mean it is contradictory, it is internally inconsistent and
      I cannot interpret it in this forum, in this context and make a ruling
      one way or the other. Other than to say, it doesn't appear to grant
      Mr. Geiger access across the petitioner's property. I am going to
      grant the unlawful harassment protection order. .. . Now, I would
      preserve his right to come back to court if this easement matter is
       resolved in his favor and he has this matter reviewed. At this point,
       he has no right to use their property.

The commissioner entered an order of protection as requested by the Buchheits.
No. 72548-3-1/4



       Geiger appeals and argues that the commissioner lacked statutory

authority to enter an antiharassment order that prevented him from entering lot 2.

In Geiger's view, his claim to an easement transformed the dispute into one that

must be resolved through a quiet title action. He describes the case as "a

property dispute dressed up as a harassment claim." According to Geiger: "What

was going on between the parties over the months leading up to the petition was

nothing more or less than the unpleasant interactions that are, unfortunately,

common between neighbors who have conflicting views of their property rights."

       Geiger's appeal requires us to interpret the term "cognizable claim" as it is

used in RCW 10.14.080(8). This court reviews issues of statutory interpretation

de novo. Price v. Price. 174 Wn. App. 894, 903, 301 P.3d 486 (2013).

       Price is the only published decision discussing RCW 10.14.080(8). The

respondent in Price successfully appealed an antiharassment order restraining

her from coming within 100 yards of beachfront property in which she held a

majority ownership interest. Price deals with an undisputed claim to real

property. It does not shed any light on what makes a claim "cognizable" if it is

disputed.

       When we interpret a statute, our primary objective is to ascertain and give

effect to the intent of the legislature. We begin with the statute's plain language

and ordinary meaning. Where the legislature has not defined a term, we may

look to related statutes and dictionary definitions, as well as the statute's context,

to determine the plain meaning of the term. Cornu-Labat v. Hosp. Dist. No. 2
No. 72548-3-1/5



Grant County. 177 Wn.2d 221, 231-32, 298 P.3d 741 (2013); Dep't of Ecology v.

Campbell &Gwinn. LLC. 146 Wn.2d 1, 11, 43 P.3d 4 (2002).

       Chapter 10.14 RCW does not define the term "cognizable claim." Geiger

calls our attention to dictionary definitions of "cognizable" such as, for example,

"capable of being judicially heard and determined." Webster's Third New

International Dictionary 440 (2002). See also Blacks Law Dictionary 316

(10th ed. 2014): "Capable of being judicially tried or examined before a

designated tribunal; within the court's jurisdiction."

       The dictionary definitions are too broad to be helpful. Almost any dispute

about the use and enjoyment of real property is capable of being tried in superior

court. In cases adjudicated under RCW 10.14.080, the very purpose of the

"cognizable claim" limitation in subsection (8) is to draw the line between those

cases in which the court is authorized to prohibit the respondent from the use or

enjoyment of real property and those cases in which the court lacks that

authority.

       We have not found a definition of "cognizable claim" in any statute, let

alone a "related statute." But as Geiger points out, a common legal usage of the

term "cognizable claim" is in connection with the standard for considering a

motion to dismiss under CR 12(b)(6). See, e.g., Talarico bv Johnston v.

Foremost Ins. Co.. 105Wn.2d 114, 115, 712 P.2d 294 (1986) ("Under the law

and facts pleaded in the complaint, the child stated no legally cognizable claim

against his parents and the child and the parents pleaded no valid claim against

the insurer; consequently, the trial court did not err in dismissing their respective
No. 72548-3-1/6



claims for 'failure to state a claim upon which relief can be granted'"), quoting CR

12(b)(6); Kumar v. Gate Gourmet. Inc.. 180 Wn.2d 481, 506, 325 P.3d 193

(2014) ("This case was dismissed at the pleading stage, and the employees'

claim for negligent infliction of emotional distress was dismissed without analysis.

In light of this fact and in light of Washington's relatively liberal standard for

stating a cognizable claim, we reverse the dismissal.")

       We accept Geiger's proposal to define a cognizable claim under RCW

10.14.080(8) as one that would survive a motion to dismiss under CR 12(b)(6) if

pleaded in an ordinary civil action. Under CR 12(b)(6), a plaintiffstates a claim

upon which relief can be granted if it is possible that facts could be established

that would support relief. McCurrv v. Chew Chase Bank. FSB. 169 Wn.2d 96,

101,233P.3d861 (2010).

       On its face, the "Declaration of Easement and Restrictions" creates an

easement over lot 1 for the benefit of the dominant tenement, which is also lot 1.

It does not give the owner of lot 1 any particular claim to the use of any part of lot

2. But Geiger contends the language declaring an easement over lot 1 (his own

property) is merely a scrivener's error that could easily be corrected by

reformation. Geiger argues that facts could possibly be established to support

reformation of the declaration to create an effective easement over lot 2 for the

benefit of lot 1.


       One who seeks reformation of an instrument must prove by clear, cogent,

and convincing evidence that (1) both parties to the instrument had an identical

intention as to the terms to be embodied in a proposed written document, (2) the
No. 72548-3-1/7



writing which was executed is materially at variance with that identical intention,

and (3) innocent third parties will not be unfairly affected by reformation of the

writing to express that identical intention. Asotin County Port Dist. v. Clarkston

Cmtv. Corp., 2 Wn. App. 1007, 1011, 472 P.2d 554 (1970).

       In the purchase and sale agreement between Geiger and the Withrows,

the Withrows agreed to provide lot 1 with an "ingress/egress easement from the

easterly property line including the easterly bulk head and the boat ramp for

shared use between lots 1 & 2." Geiger likely could establish that he and the

Withrows had the identical intention that the easement would burden lot 2. The


question less easily answered is whether it would be fair to the Buchheits to

reform the easement to conform to what Withrows and Geiger intended.

       The "speedy and inexpensive" procedure for obtaining a civil

antiharassment order is not well-suited for addressing the legal issues involved in

answering that question. Reformation will be granted even against a subsequent

purchaser who obtained title with notice of the mistake. Shaw v. Briggle, 193

Wash. 595, 598, 76 P.2d 1011 (1938). In Shaw, the subsequent purchaser was

personally involved in the drafting of the mistaken instrument and tried to profit

from it. Geiger does not posit that the Buchheits were personally involved in the

transaction whereby he acquired lot 1. But the declaration of easement does

identify lot 2 as the servient tenement, and the declaration was recorded before

the Buchheits purchased lot 2 from the Withrows. Arguably, the Buchheits might

be deemed to have notice that the lot they purchased was burdened by a
No. 72548-3-1/8



23-foot-wide easement. In a hypothetical lawsuit involving Geiger, the Buchheits,

and the Withrows, we cannot say that Geiger's claim for reformation would

necessarily be dismissed on a CR 12(b)(6) motion.

      Although the commissioner said he could not interpret the easement "in

this forum," the commissioner did in fact interpret the easement as being invalid

when he declared: "At this point, [Geiger] has no right to use their property." The

commissioner's conclusion that Geiger has no right to use lot 2 was the primary

basis for issuing the antiharassment order. The commissioner allowed that the

order could be changed if Geiger obtained a favorable ruling on the easement

from some other forum. It is not clear, however, that in some other forum, Geiger

would be able to avoid the collateral estoppel effect of the commissioner's

determination that the easement gives him no right in the property. With the legal

uncertainty that hangs over the easement, this seems to be exactly the kind of

situation the legislature intended to avoid by adopting the "cognizable claim"

limitation in RCW 10.14.080(8).

       We conclude Geiger has a cognizable claim to use and enjoy a

23-foot-wide easement over the lot owned by the Buchheits. It follows that the

trial court lacked authority to issue an antiharassment order prohibiting him from

entering their lot. To the extent the Buchheits allege harassing conduct by

Geiger unrelated to his claim of easement, they may renew their petition and

seek narrower prohibitions.




                                         8
No. 72548-3-1/9



      Reversed.




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WE CONCUR:




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