                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          September 5, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 BRIAN BYRD and NICOLE BYRD, husband                                  No. 50513-4-II
 and wife,

                                Appellants,

         v.

 PIERCE COUNTY, a Washington municipal                           PUBLISHED OPINION
 corporation,

                                Respondent.

       JOHANSON, J. — Brian and Nicole Byrd appeal the superior court’s grant of Pierce

County’s CR 12(b)(6) motion to dismiss the Byrds’ complaint. The Byrds argue that their

complaint stated claims for equitable estoppel and quiet title upon which relief can be granted and

that they were not required to exhaust administrative remedies under the Land Use Petition Act

(LUPA), ch. 36.70C RCW. We hold that (1) as a matter of law, equitable estoppel may not be

alleged offensively as a cause of action by plaintiffs, so the Byrds’ complaint failed to state an

equitable estoppel claim, (2) the Byrds failed to state a quiet title claim, and (3) because the Byrds

failed to state claims upon which relief can be granted, we do not consider the exhaustion of

remedies issue. We affirm.
No. 50513-4-II


                                             FACTS

            I. COMPLAINT: ALLEGED CAUSES OF ACTION AND REQUESTS FOR RELIEF

       The Byrds filed a complaint in superior court entitled “Complaint for Equitable Estoppel

and Request for Perm[a]n[e]nt Inju[n]ctive Relief.” In a section with the heading “Causes of

Action: Quiet Title/Declaratory Relief,” the Byrds incorporated their factual allegations by

reference and then provided the following statement describing their action:

       Plaintiffs have spent 5 years and thousands of dollars moving through the
       permitting process to build the new recycling center. The County has been aware
       of, and has verbally approved, Plaintiffs’ plans since 2012. The County has
       approved construction/renovation so as to create an office. The County has
       requested and recommended approval of Plaintiffs’ submitted engineering designs.
       Plaintiffs consulted with the County prior to purchasing the property. Plaintiffs
       reasonably relied on the County’s assertions, permits and approvals to use the
       Subject Property for commercial use. The County has now changed its approval to
       a denial. Plaintiffs have been damaged by the County’s denial. Such conduct by
       the County satisfies the doctrine of equitable estoppel as a party cannot act in a
       manner allowing another to rely on such action only to then contradict or repudiate
       such action to the detriment of the relying party.

Clerk’s Papers (CP) at 5 (emphasis added).

       The only time the Byrds used the phrase “quiet title” was in the heading of the section

discussing their equitable estoppel claim. The complaint’s request for relief asked for “an order

estopping the County from denying Plaintiffs’ minor right of way driveway deviation” and a

“permanent injunction against the enforcement of a covenant on title restricting residential access

only to the Subject commercial Property.” CP at 6. The complaint did not assert that there was a

dispute regarding competing property rights or the parties’ respective rights under the deed

language. The complaint did not allege that the Byrds were entitled to commercial access to the

property under the deed. The complaint also did not ask the court to interpret the deed language.



                                                2
No. 50513-4-II


                                     A. FACTUAL ALLEGATIONS

1.     1967 WARRANTY DEED AND 1979 QUIT CLAIM DEED

       In 1967, Disman and Beverly Peecher owned the “Subject Property” in Puyallup, which

was directly adjacent to State Route (SR) 512 and Canyon Road. SR 512 was under construction,

and the State used eminent domain to purchase the portion of the Peechers’ property that directly

abutted SR 512. The Peechers deeded a portion of their property to the State and relinquished

rights to access SR 512 from the Subject Property. The deed included a 14-foot residential

driveway exclusion that stated, in relevant part, that the Peechers granted to the State “all rights of

ingress and egress . . . to, from and between” SR 512 and the Subject Property except right of way

access “for the sole purpose of serving a single family residence.” CP at 103.

       In 1979, when the State completed construction of SR 512, the State quit claimed to the

County “all right, title and interest in the property” that the State had obtained from the Peechers

under the 1967 deed. CP at 2. The deed stated that the County would “maintain the control of

ingress and egress to, from and between the lands herein conveyed and the lands adjacent thereto,”

including the Subject Property. CP at 15.

2.     2012 WARRANTY DEED

       In September 2012, the Byrds purchased the Subject Property from the Peechers with the

intent to build a commercial recycling center. The purchase was conditioned on the removal of

the residential structure on the Subject Property, which was accomplished under a residential

demolition permit issued by the County. The warranty deed from the Peechers to the Byrds stated

that the Peechers conveyed to the Byrds the Subject Property “[s]ubject to easements, covenants,




                                                  3
No. 50513-4-II


conditions and restrictions shown on Exhibit ‘A’ as hereto attached and by this reference made a

part hereof.” CP at 31. The attached exhibit A stated,

       Relinquishment of right of access to state highway and of light, view and air under
       terms of deed to the State of Washington recorded under Auditor’s No. 2214607
       [the 1967 warranty deed].

CP at 32. At the time the Byrds purchased the Subject Property, they had a partially legible copy

of the 1967 warranty deed.

    B. COMMERCIAL DEVELOPMENT AND COUNTY’S ENFORCEMENT OF ACCESS RESTRICTION

       The Byrds communicated with the County numerous times between 2012 and 2016 to seek

information and submit applications regarding the Subject Property’s development. In April 2013,

the County issued permits for the Byrds to convert a detached garage on the Subject Property into

office space. In August 2014, the County approved the Byrds’ plans for the proposed commercial

recycling center. In March 2015, the Byrds received approval to clear the Subject Property, which

was required before the Byrds could obtain building permits for the recycling center.

       In October, the County informed the Byrds that in order to use the Subject Property for

commercial purposes, the Byrds needed to obtain an engineering deviation to widen the driveway

to comply with commercial driveway regulations. In December, the Byrds submitted a deviation

request to widen the driveway. In January 2016, a county engineer “recommended” approval for

the Byrds’ deviation request if the Byrds constructed the road, lighting, and curbing into and out

of the Subject Property consistent with the conditions specified in the memo.

       In February 2017, the State sent an e-mail to the County saying that the State had an

“understanding” that “a commercial recycling facility has been proposed” on the Subject Property.

CP at 76. The State’s e-mail said that the driveway on the County’s property “is currently only


                                                4
No. 50513-4-II


allowed as a Type A Residential Use driveway.” CP at 76. The State expressed concern to the

County that the Byrds’ proposed development could have negative impacts on traffic patterns and

said, “[Washington State Department of Transportation] will not support allowing the driveway’s

usage to be changed from its current residential use only.” CP at 76. The State asked the County

to enforce the limited access restrictions in the 1967 deed that allowed only single-family

residential access to the Subject Property from SR 512.

       In March 2017, the County denied the deviation request “due to title notification that the

subject parcel is only allowed a residential driveway approach not to exceed 14 feet wide.” CP at

81. The denial stated that the Byrds’ deed for the Subject Property contained a reference to the

1967 warranty deed and the residential access restriction it contained.

       The Byrds filed a “Complaint for Equitable Estoppel and Request for Perm[a]n[e]nt

Inju[n]ctive Relief” in superior court.

                              II. MOTION TO DISMISS AND RESPONSE

       In May, the County filed a CR 12(b)(6) motion to dismiss the Byrds’ action, arguing that

the Byrds had failed to comply with the LUPA requirement that they exhaust administrative

remedies regarding the deviation permit denial before appealing to superior court. In addition, the

County asserted that there was no legal theory under which the Byrds could succeed on their

equitable estoppel claim because the superior court cannot prohibit enforcement of the deed or

state law. The County asserted that the deed language clearly prohibited commercial access to the

Subject Property, and RCW 47.52.080 allowed access to, from, and between limited access

highways and abutting properties only to the extent authorized in a deed. As such, according to

the State, the deed allowing only single-family residential access between the highway and the


                                                 5
No. 50513-4-II


Subject Property was a limitation on access to the Subject Property provided under state law, and

this access limitation could not be modified by the County even if the County wanted to grant such

access.

          The Byrds asserted for the first time in reply to the County’s response that the language in

the deed, allegedly imposing a limited residential access restriction to the Subject Property, was

unclear. They argued that the court, as a threshold matter, needed to address whether the deed

limited all commercial access to the Subject Property, and if so whether the County was equitably

estopped from enforcing the deed. As such, the Byrds asserted that their complaint addresses “the

scope of a deed provision” and “the application of equitable estoppel,” both of which the Byrds

claimed are issues outside the authority of the hearing examiner and properly brought as original

actions in the superior court. CP at 122.

          The superior court granted the County’s motion to dismiss, concluding that the Byrds had

failed to state a claim upon which relief could be granted and had failed to exhaust administrative

remedies.

          The Byrds appeal the superior court’s order dismissing their complaint.

                                             ANALYSIS

                                    I. FAILURE TO STATE A CLAIM

          The Byrds assert that the superior court improperly granted the County’s motion to dismiss

because the Byrds stated claims for equitable estoppel and quiet title upon which relief could be

granted. And in an assignment of error, the Byrds assert that their complaint stated a “cause[] of

action” for “injunctive relief.” Appellants’ Br. at 1. We disagree with the Byrds’ assertions.




                                                   6
No. 50513-4-II


                                     A. PRINCIPLES OF LAW

       We review de novo a trial court’s decision to dismiss a claim under CR 12(b)(6). Kinney

v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007). Dismissal based on failure to state a claim is

appropriate only if we conclude, beyond a reasonable doubt, that the plaintiff cannot prove any set

of facts consistent with the complaint which would justify recovery. Kinney, 159 Wn.2d at 842.

       We presume “all facts alleged in the plaintiff’s complaint are true and may consider

hypothetical facts supporting the plaintiff’s claims.” Kinney, 159 Wn.2d at 842.           “‘[A]ny

hypothetical situation conceivably raised by the complaint defeats a CR 12(b)(6) motion if it is

legally sufficient to support plaintiff's claim.’” Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888

P.2d 147 (1995) (alteration in original) (quoting Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d

1190 (1978)). We grant motions to dismiss “‘only in the unusual case in which plaintiff includes

allegations that show on the face of the complaint that there is some insuperable bar to relief.’”

Kinney, 159 Wn.2d at 842 (internal quotation marks omitted) (quoting Hoffer v. State, 110 Wn.2d

415, 420, 755 P.2d 781 (1988)).

                                    B. EQUITABLE ESTOPPEL

       The Byrds assert that their complaint raises an “equitable estoppel claim” and argue that

the County should be equitably estopped from enforcing the Subject Property’s access restrictions

and denying the Byrds’ engineering deviation. Appellants’ Reply Br. at 12. Specifically, the

Byrds argue that they reasonably relied on the County’s representations that the Byrds would

receive authorization to commercially develop their property. But equitable estoppel is not a claim

upon which relief may be granted. As such, the Byrds’ alleged action for equitable estoppel fails

as a matter of law.


                                                7
No. 50513-4-II


1.     PRINCIPLES OF LAW

       “Equitable estoppel ‘is not available for offensive use by plaintiffs.’” Mudarri v. State,

147 Wn. App. 590, 619, 196 P.3d 153 (2008) (quoting Greaves v. Med. Imaging Sys., Inc., 124

Wn.2d 389, 397, 879 P.2d 276 (1994)).1 Equitable estoppel may be used only as a “‘shield or

defense’” and cannot be used as a “‘sword.’” Mudarri, 147 Wn. App. at 619 (internal quotation

marks omitted) (quoting Klinke v. Famous Recipe Fried Chicken Inc., 94 Wn.2d 255, 259, 616

P.2d 644 (1980)). Equitable estoppel prevents a party from taking a position inconsistent with a

previous one where inequitable consequences would result to a party who has justifiably and in

good faith relied. Kramarevcky v. Dep’t of Soc. & Health Servs., 122 Wn.2d 738, 743, 863 P.2d

535 (1993).

       Moreover, the application of equitable estoppel against state or local governments is

disfavored. Kramarevcky, 122 Wn.2d at 743. “When equitable estoppel is asserted against the

government, the party asserting estoppel must establish five elements by clear, cogent, and

convincing evidence: (1) a statement, admission, or act by the party to be estopped, which is

inconsistent with its later claims; (2) the asserting party acted in reliance upon the statement or

action; (3) injury would result to the asserting party if the other party were allowed to repudiate its

prior statement or action; (4) estoppel is ‘necessary to prevent a manifest injustice;’ and (5)




1
  See also Motley-Motley, Inc. v. Pollution Control Hr’gs Bd., 127 Wn. App. 62, 73-74, 110 P.3d
812 (2005) (“Equitable estoppel is available only as a shield, or defense; it is not available as a . .
. cause of action.”); Harberd v. City of Kettle Falls, 120 Wn. App. 498, 519, 84 P.3d 1241 (2004)
(“Equitable estoppel is properly applied ‘as a shield or defense, while promissory estoppel can be
used as a sword in a cause of action for damages.’”) (internal quotation marks omitted) (quoting
State ex rel. D.R.M. v. Wood, 109 Wn. App. 182, 196, 34 P.3d 887 (2001)).


                                                  8
No. 50513-4-II


estoppel will not impair governmental functions.” Silverstreak, Inc. v. Dep’t of Labor & Indus.,

159 Wn.2d 868, 887, 154 P.3d 891 (2007) (quoting Kramarevcky, 122 Wn.2d at 743).

2.     EQUITABLE ESTOPPEL NOT BASIS FOR RELIEF

       To the extent the Byrds’ complaint relies on equitable estoppel as a cause of action, it fails

to state a claim as a matter of law.

       In Greaves, the plaintiff argued that his oral employment contract was enforceable against

his former employer because equitable estoppel exempted the contract from the statute of frauds.

124 Wn.2d at 397. Our Supreme Court held that equitable estoppel is not available for offensive

use by plaintiffs, and thus the plaintiff could not rely on equitable estoppel to assert its wrongful

termination, breach of contract, and defamation claims. Greaves, 124 Wn.2d at 397-98.

       To support their argument that the Greaves rule is limited to actions involving claims for

damages, the Byrds cite Chemical Bank v. Washington Public Power Supply System, 102 Wn.2d

874, 691 P.2d 524 (1984), Klinke, and Harberd v. City of Kettle Falls, 120 Wn. App. 498, 519-20,

84 P.3d 1241 (2004). These cases fail to support the Byrds’ argument.

       First, Chemical Bank avoided addressing whether plaintiffs could maintain an equitable

estoppel claim offensively because it held that even if equitable estoppel were available to

plaintiffs, the claim would fail. 102 Wn.2d at 905. And Greaves, resolved after Chemical Bank,

held that equitable estoppel is not available for offensive use by plaintiffs. 124 Wn.2d at 397-98.

       Second, Harberd addressed plaintiff Harberd’s assertion that the City was estopped from

denying water hookups to him. 120 Wn. App. at 519. Harberd failed to assert the nature of his

estoppel claim, and the City argued that neither equitable nor promissory estoppel supported

Harberd’s argument. Harberd, 120 Wn. App. at 519. Division Three of this court stated the rule


                                                 9
No. 50513-4-II


that equitable estoppel is a defense, while promissory estoppel can be used as a sword in a cause

of action for damages. Harberd, 120 Wn. App. at 519. The court then said, without explanation,

that “our analysis turns on promissory estoppel.” Harberd, 120 Wn. App. at 520. Contrary to the

Byrds’ assertion, Harberd’s requested relief for damages was not material to the court’s rejection

of his estoppel claim. Instead, the court held that because Harberd failed to raise a genuine issue

of material fact as to the first element of promissory estoppel, his estoppel claim failed. Harberd,

120 Wn. App. 521. The court’s rejection of Harberd’s promissory estoppel claim does not support

the Byrds’ argument that the rule in Greaves is applicable only to cases involving damages

requests. See Harberd, 120 Wn. App. at 519-21.

       Finally, in Klinke, a franchisee brought an action for damages against a franchisor for

breach of contract. 94 Wn.2d at 256. Our Supreme Court addressed whether equitable estoppel

or promissory estoppel could support an action for damages, and the court held that while equitable

estoppel cannot support a cause of action for damages, promissory estoppel could. Klinke, 94

Wn.2d at 258-59. The court relied on authority from Arizona that held that equitable estoppel is a

defense, while promissory estoppel may be asserted as a cause of action in claims for damages.

Klinke, 94 Wn.2d at 259 (citing Tiffany Inc. v. W.M.K. Transit Mix, Inc., 16 Ariz. App. 415, 493

P.2d 1220 (1972)). The court did not address whether equitable estoppel could support a cause of

action in any context; it examined only whether equitable estoppel could serve as a basis for a

damages claim. See Klinke, 94 Wn.2d at 258-59. That Klinke prohibits a plaintiff from asserting

equitable estoppel in a damages claim does not support the Byrds’ claim that plaintiffs seeking

only damages are prohibited from filing equitable estoppel actions. 94 Wn.2d at 258-59.




                                                10
No. 50513-4-II


       Contrary to the Byrds’ argument, the holding in Greaves regarding equitable estoppel’s

defensive nature applies outside the context of claims for damages. Our Supreme Court has

repeatedly considered equitable estoppel as a defense in property disputes requesting declaratory

or injunctive relief. See, e.g., Tyree v. Gosa, 11 Wn.2d 572, 577-79, 119 P.2d 926 (1941) (holding

that the plaintiff was not equitably estopped from asserting a quiet title action); Sorenson v. Pyeatt,

158 Wn.2d 523, 538-42, 146 P.3d 1172 (2006) (holding that equitable estoppel did not bar the

plaintiff’s quiet title action); Lauer v. Pierce County, 173 Wn.2d 242, 256-57, 267 P.3d 988 (2011)

(holding that equitable estoppel did not bar certain claims in a LUPA petition).

       In addition, we have concluded that a plaintiff could not assert equitable estoppel

offensively in a declaratory relief action. Mudarri, 147 Wn. App. at 600, 619. In Mudarri, the

State denied a private casino owner’s request for permission to install certain electronic gambling

machines in part based on the conclusion that only Indian tribes have legal authority to operate

such machines. 147 Wn. App. at 598. The casino owner filed a declaratory judgment action

against the State, alleging that the State was equitably estopped from denying his proposed

operation of electronic gambling machines. Mudarri, 147 Wn. App. at 619. Affirming the superior

court’s CR 56 summary judgment dismissal of Mudarri’s claims, we applied the principle that

“[e]quitable estoppel ‘is not available for offensive use by plaintiffs’” and concluded that as

plaintiff, Mudarri could not affirmatively assert that the State is equitably estopped from

preventing his proposed operation of electronic scratch ticket games. Mudarri, 147 Wn. App. at

619 (quoting Greaves, 124 Wn.2d at 397).

       The Byrds argue that Mudarri is distinguishable because it was resolved on other grounds

and is factually dissimilar from the Byrds’ situation. But Mudarri is analogous to the facts in the


                                                  11
No. 50513-4-II


Byrds’ case and is controlling. Just as the plaintiffs in Mudarri could not offensively assert

equitable estoppel to prevent the denial of its request to operate gambling machines, the Byrds

may not offensively assert equitable estoppel to prevent the denial of their request for an

engineering deviation. 147 Wn. App. at 619. In both cases, the plaintiffs improperly rely on

equitable estoppel as an offensive claim. As we held in Mudarri, as a matter of law, the Byrds

cannot rely on equitable estoppel as a cause of action. 147 Wn. App. at 619.2

3.     BYRDS’ AUTHORITY DISTINGUISHABLE

       The Byrds cite to several cases to support their claims that they “properly pleaded a cause

of action for equitable estoppel” and that they pleaded a valid equitable estoppel claim “in the

context of permitting.” Appellants’ Br. at 9; Appellants’ Suppl. Br. at 2. These cases are

distinguishable.

       Parmelee v. Clarke, Kramarevcky, and Lybbert v. Grant County involve the defensive use

of equitable estoppel and are distinguishable on that basis. 148 Wn. App. 748, 752, 758, 201 P.3d

1022 (2008); 122 Wn.2d at 743; 141 Wn.2d 29, 45, 1 P.3d 1124 (2000). Skagit Hill Recycling,

Inc. v. Skagit County is distinguishable because it involved a failure to adequately brief equitable




2
 Other states’ authority also support that equitable estoppel is a defense and not a cause of action.
See, e.g., Behnke v. State Farm Gen. Ins. Co., 196 Cal. App. 4th 1443, 1463, 127 Cal. Rptr. 3d 372
(2011); Moncada v. W. Coast Quartz Corp., 221 Cal. App. 4th 768, 782, 164 Cal. Rptr. 3d 601
(2013); Torliatt v. Ocwen Loan Servicing LLC, No. 18-cv-01516-JSC, 2018 WL 2197689, at *4
(N.D. Cal. May 4, 2018); Lawrence v. Wells Fargo Bank, N.A., No. C14-1272 PJH, 2014 WL
2705425, at *13 (N.D. Cal. June 13, 2014); Howell v. Oregonian Pub. Co., 82 Or. App. 241, 247,
728 P.2d 106, 735 P.2d 659 (1986); Lowe v. Pima County, 217 Ariz. 642, 650, 177 P.3d 1214
(Ariz. Ct. App. 2008); W. Corr. Grp., Inc. v. Tierney, 208 Ariz. 583, 589, 96 P.3d 1070 (Ariz. Ct.
App. 2004).


                                                 12
No. 50513-4-II


estoppel, resulting in the plaintiff waiving the issue. 162 Wn. App. 308, 321, 253 P.3d 1135

(2011).

          Parmelee did not plead a cause of action for equitable estoppel. Rather than bringing an

equitable estoppel claim as an “offensive” argument, Parmelee brought a legal action under the

Public Records Act, ch. 42.56 RCW, and relied on equitable estoppel defensively to prevent the

defendant from prevailing on its defense. See Parmelee, 148 Wn. App. at 758-59.

          The Byrds’ reliance of Kramarevcky fails because the Supreme Court upheld the use of

equitable estoppel as a defense in an action by the Department of Social and Health Services to

recoup overpayment of funds. 122 Wn.2d at 740-41, 750. The court repeatedly referred to “the

defense of equitable estoppel.” Kramarevcky, 122 Wn.2d at 741-42, 749. Kramarevcky does not

support that equitable estoppel is a valid cause of action in permitting cases.

          The plaintiff in Lybbert did not rely on equitable estoppel as a cause of action or raise it in

an offensive manner; instead, they used it as a shield against the State’s affirmative defense. 141

Wn.2d at 35-38. Lybbert does not support that equitable estoppel is a cause of action for offensive

use by plaintiffs.3

          In Skagit Hill Recycling, we held that because the plaintiff failed to adequately brief

equitable estoppel in an administrative permitting appeal, plaintiff waived the issue. 162 Wn. App.


3
  The Byrds also cite to two unpublished cases, Semenenko v. Department of Social & Health
Services, noted at 182 Wn. App. 1052 (2014), and Department of Labor & Industries v. Kristensen,
noted at 198 Wn. App. 1064 (2017). These cases are not necessary to make a reasoned decision
and do not support the Byrds’ arguments, so we consider them no further. GR 14.1.
       In addition, at oral argument, the Byrds cited to Bersos v. Cape George Colony Club, 4
Wn. App. 663, 484 P.2d 485 (1971). This case does not address whether equitable estoppel is
available for offensive use by plaintiffs and it is distinguishable from the Byrds’ claim, so we do
not consider it further.


                                                    13
No. 50513-4-II


at 321. Our conclusion that a plaintiff waived an argument does not support that equitable estoppel

is a valid cause of action “in the context of permitting.” Appellants’ Suppl. Br. at 2.

         The Byrds rely on cases that are distinguishable because none of them involve a cause of

action for the offensive use of equitable estoppel.

4.       EQUITABLE ESTOPPEL NOT CAUSE OF ACTION IN PERMITTING CONTEXT

         Motley-Motley, Inc. v. Pollution Control Hr’gs Bd., 127 Wn. App. 62, 67, 110 P.3d 812

(2005), establishes that in claims challenging county permitting decisions, equitable estoppel is a

defense rather than a cause of action.       Therefore, Motley-Motley does not support the Byrds’

argument here.

         In Motley-Motley, a property owner appealed the Pollution Control Hearings Board’s

(PCHB) ruling upholding the Department of Ecology’s (DOE) decision that the plaintiff had

relinquished its water rights through nonuse. 127 Wn. App. at 67. For the first time on appeal in

the superior court, the plaintiff asserted that the State should be equitably estopped from

concluding that the plaintiffs had relinquished their water rights. Motley-Motley, 127 Wn. App. at

67. The superior court found that the PCHB did not have authority to hear the equitable estoppel

claim, so it was properly raised for the first time in superior court. Motley-Motley, 127 Wn. App.

at 67.

         On appeal, in its examination of whether the equitable estoppel claim was an equitable

cause of action properly heard for the first time in superior court, Division Three of this court relied

on the principle that “[e]quitable estoppel is available only as a shield, or defense; it is not available

as a sword, or cause of action.” Motley-Motley, 127 Wn. App. at 73. As such, Division Three of

this court held that “Motley’s equitable estoppel claim against DOE was not a separate action in


                                                   14
No. 50513-4-II


equity. Rather, it was an equitable defense to DOE’s action at law, a claim for relinquishment of

Motley’s water right. Accordingly, Motley’s assertion of an equitable estoppel defense did not

convert the proceeding before PCHB into an equitable action.” Motley-Motley, 127 Wn. App. at

74-75.

         Just as Division Three of this court in Motley-Motley held that the plaintiff’s equitable

estoppel claim was a defense and not a cause of action, the Byrds’ equitable estoppel claim would

have been properly asserted as a defense in the context of a challenge to the County’s permit denial

rather than as a cause of action. The Byrds could have asserted in a LUPA appeal that the County

was equitably estopped from asserting its interest in enforcing the deed restriction as a basis for

the deviation permit denial in response to the County’s assertion that the Byrds were prohibited

under their deed from accessing the Subject Property for commercial use. This would be similar

to the procedure Division Three deemed appropriate in Motley-Motley.

         But the Byrds have expressly stated that they are not challenging the deviation permit

denial and that their action is based on an equitable estoppel cause of action. Under the ample

authority discussed here, the Byrds could not establish equitable estoppel as a cause of action as a

matter of law.

5.       CONCLUSION

         As a matter of law, equitable estoppel is a defense and not a claim upon which relief can

be granted, so we hold beyond a reasonable doubt that the Byrds cannot prove any set of facts

consistent with the complaint that would justify recovery on the basis of equitable estoppel. See

Kinney, 159 Wn.2d at 842. Because equitable estoppel may not be relied upon for offensive use

by plaintiffs, there is an “‘insuperable bar to relief’” on the basis of an equitable estoppel action.


                                                 15
No. 50513-4-II


Kinney, 159 Wn.2d at 842 (quoting Hoffer, 110 Wn.2d at 420). As such, the trial court properly

granted the County’s motion to dismiss the equitable estoppel claim.

                                           C. QUIET TITLE

       Next, the Byrds claim that their complaint pleaded a quiet title claim under RCW 7.28.010.4

We disagree.

1.     PRINCIPLES OF LAW

       A quiet title action is equitable and “‘designed to resolve competing claims of ownership’

to property.” Bavand v. OneWest Bank, F.S.B., 176 Wn. App. 475, 502, 309 P.3d 636 (2013)

(quoting Walker v. Quality Loan Serv. Corp. of Wash., 176 Wn. App. 294, 322, 308 P.3d 716

(2013)); see RCW 7.28.010. “An action to quiet title allows a person in peaceable possession or

claiming the right to possession of real property to compel others who assert a hostile right or claim

to come forward and assert their right or claim and submit it to judicial determination.” Kobza v.

Tripp, 105 Wn. App. 90, 95, 18 P.3d 621 (2001).

       Washington law provides that the plaintiff in a quiet title action “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.” RCW 7.28.120 (emphasis added). “It is a long-standing principle that

‘[a] plaintiff in an action to quiet title must succeed on the strength of his own title and not on the

weakness of his adversary.’” Bavand, 176 Wn. App. at 502 (bold omitted) (quoting Desimone v.

Spence, 51 Wn.2d 412, 415, 318 P.2d 959 (1957)).


4
 Here, the Byrds allege quiet title as a cause of action separate from its “equitable estoppel” cause
of action. The Byrds brief the issues separately and treat them as independent causes of action.


                                                  16
No. 50513-4-II


        RCW 7.28.010 provides,

        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.

(Emphasis added.)

2.      NO QUIET TITLE CLAIM ASSERTED

        The Byrds argue that their complaint asserted a quiet title claim because it mentioned quiet

title in the heading for its causes of action, attached the “partially indecipherable” copy of the deed,

and described the property transfers related to the subject property. Appellants’ Reply Br. at 12.

Thus, according to the Byrds, the complaint “clearly raise[es] the central question of what interests

each party has in the subject property and can such rights be presently enforced.” Appellants’

Reply Br. at 12. We disagree.

        a.     NO ASSERTED PROPERTY INTEREST

        The Byrds’ complaint failed to state a claim for quiet title because it failed to allege any

“valid subsisting interest” and a right to “possess[]” a right of way over the County’s property for

commercial access to the Subject Property. RCW 7.28.010. In addition, the Byrds did not seek to

“recover” a right of way from the County to which the Byrds claimed a competing property

interest. RCW 7.28.010. Contrary to the Byrds’ assertions, the mere mention of “quiet title” in a

heading, attached deeds, and description of property transfers fails to allege any property right that

the Byrds have that is in conflict with the County’s alleged property rights. See RCW 7.28.010,

.120.




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          The Byrds’ complaint relies solely on the doctrine of equitable estoppel rather than

asserting a “valid subsisting interest in” a right of way for commercial access. RCW 7.28.010.

Specifically, the Byrds’ complaint alleges that the County made representations that it would allow

the Byrds to commercially develop their property. The Byrds’ complaint seeks to estop the County

from enforcing its “covenant on title restricting residential access only to the Subject commercial

Property,” and thus it attempts to prevent the County’s enforcement of its right to restrict access.

CP at 6.

          The Byrds’ complaint fails to assert that they have a right to possession of a right of way

over the County’s property for commercial access to the Subject Property. Such a possessory right

would be necessary to establish a quiet title claim. See RCW 7.28.010, .120. Although the

complaint states that the elements of equitable estoppel are satisfied, estoppel is not a doctrine that

itself asserts or establishes rights of the party raising the equitable estoppel defense; instead, it is

a doctrine that when raised properly, prevents another party from asserting its own right when it

contradicts what the party has said or done before. See Lybbert, 141 Wn.2d at 34. As such, the

Byrds’ attempt to raise the doctrine of equitable estoppel regarding the County’s alleged

representations that it would allow commercial development on the Subject Property does not

assert a “valid subsisting interest” that the Byrds have that may be “recover[ed]” through a quiet

title claim. RCW 7.28.010, .120.

          Without asserting and relying on the strength of their own title to establish their purported

quiet title action, the Byrds have failed to state a claim for quiet title. See Bavand, 176 Wn. App.

at 502.




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No. 50513-4-II


       b.      NO QUIET TITLE RELIEF REQUESTED

       In addition, the complaint fails to state a claim for quiet title because it did not request

relief in the form of “quieting or removing a cloud from plaintiff’s title” that is available in a quiet

title claim.   RCW 7.28.010 (emphasis added).           The request for relief did not request an

interpretation of the deed language to resolve conflicting title claims, nor did it assert or argue that

the deed language was disputed and that the Byrds were entitled under the deed to a right of way

over the County’s property for commercial access to the Subject Property. These are theories and

assertions that are not contained in the complaint and instead were raised for the first time in the

Byrds’ answer to the County’s motion to dismiss.

       The requests for relief included “an order estopping the County from denying Plaintiffs’

minor right of way driveway deviation” and a “permanent injunction against the enforcement of a

covenant on title restricting residential access only to the Subject commercial Property.” CP at 6

(emphasis added). By requesting relief preventing enforcement of the access restrictions, rather

than requesting interpretation of the rights and restrictions governing a clouded title or an order

quieting title as to the parties’ rights, the complaint appears to acknowledge that the deed prohibits

commercial access to the property and does not request a judgment for the quiet title relief

contemplated by RCW 7.28.010.




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No. 50513-4-II


3.       BYRDS’ AUTHORITY DISTINGUISHABLE

         To support their quiet title claim, the Byrds rely on Butler v. Craft Engineering

Construction Co., 67 Wn. App. 684, 700, 843 P.2d 1071 (1992).5

         This case is factually distinguishable. In Butler, Division One of this court considered

whether the trial court erred when it failed to quiet title where it was undisputed that the plaintiffs

had asserted a quiet title claim, and the defendants asserted quiet title in their summary judgment

motion and trial briefing. See 67 Wn. App. at 700. In contrast, the Byrds appeal a motion to

dismiss based on their failure to adequately state a claim for quiet title in their complaint. Butler

does not help resolve the question of whether the Byrds’ complaint adequately stated a quiet title

claim.

4.       CONSTRUCTION OF DEED LANGUAGE

         The Byrds also raise numerous detailed arguments regarding the proper construction of the

deed language. These arguments relate to the merits of the Byrds’ alleged quiet title claim. To

the extent the Byrds ask us to construct the deed language, their claim fails. Our review of a

motion to dismiss considers only whether the complaint has adequately stated a claim for relief.




5
 The Byrds also rely on the unpublished case Fix v. Fix, noted at 176 Wn. App. 1030, 2013 WL
5311267 (2013). Because Fix is unpublished and is not necessary to provide a reasoned decision
and because the authority is clearly factually distinguishable, we do not consider it further.


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No. 50513-4-II


Kinney, 159 Wn.2d at 842. This inquiry does not include reaching the merits of the Byrds’

arguments regarding deed interpretation.6

                                            CONCLUSION

         The Byrds’ complaint relied on equitable estoppel, which is not available for offensive use

to state a cause of action by plaintiffs, and their complaint failed to state a claim for quiet title to a

right to possess a right of way for commercial access to the Subject Property. As such, under CR

12(b)(6), the Byrds failed to state a claim upon which relief can be granted, and the superior court

properly granted the County’s motion to dismiss.

         We affirm.



                                                        JOHANSON, J.
    We concur:



    MAXA, C.J.




    SUTTON, J.




6
  We need not reach the exhaustion of remedies issue because the Byrds’ failure to state a claim is
a proper basis for the superior court to grant the County’s CR 12(b)(6) motion to dismiss. In
addition, we need not reach the Byrds’ claim, raised in an assignment of error, that their complaint
asserted an action for injunctive relief. The Byrds failed to provide argument and failed to provide
legal or factual support that their complaint asserted an action for injunctive relief. We do not
consider claims unsupported by legal authority, citation to the record, or argument. RAP
10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
As such, the issue is waived, and we do not address if further. RAP 10.3(a)(6). Cowiche Canyon
Conservancy, 118 Wn.2d at 809.
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