                                                                          FILED
                                                                       APRIL 11, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

RICARDO G. GARCIA and LUZ C.                  )
GARCIA, husband and wife,                     )        No. 34189-5-111
                                              )
                     Appellant,               )
                                              )
       v.                                     )
                                              )         UNPUBLISHED OPINION
TED HENLEY and AUDEAN HENLEY,                 )
individually and the marital community of     )
them composed,                                )
                                              )
                     Respondent.              )

       KORSMO,   J. -The trial court denied the request of Luz and Ricardo Garcia to

eject a fence their neighbors, Audean and Ted Henley, had built six inches on to the

Garcia property. Dissatisfied with the $500 damage award, the Garcias appeal to this

court. Concluding that the trial court acted within its discretion in designing a remedy,

we affirm.

                                         FACTS

       With each succeeding repair or replacement of the fence between their respective

properties, the Henleys moved it further and further on to the· Garcia property. A chain

link fence, in place long before either the Henleys (1985) or the Garcias (1991) purchased
No. 34189-5-111
Garcia v. Henley


their properties, was believed to mark the boundary line. The trial court ultimately found

that it, too, had always been located on the Garcia property.

       The next significant intrusion onto the Garcia property came in 1997 when the

Henleys replaced the final 67 feet of the eastern end of the chain link fence with a

wooden fence supported by metal poles. This adjustment occurred while the Garcias

were out of the country. Upon their return, they protested the intrusion, but no legal

action was taken.

       However, when the next revision to the fence line occurred in 2011, the Garcias

responded with the current action to eject the Henley fence and to recover damages for

trespass. The Henleys testified that they believed they were replacing the fence in the

same location it already stood. The trial court found that in replacing the eastern portion

of the fence in 2011, the new location intruded an additional six inches on to the property

over the final 67 feet, resulting in the Henleys encroaching on an additional 33.5 square

feet of Garcia property.

       At the ensuing trial, the court found that the Garcias had established the elements

of their ejectment claim for the 2011 encroachment. The court also determined that the

most significant intrusions had occurred long before the 2011 action, resulting in the

Henleys gaining all land down to the fence line by adverse possession. Noting that the

Garcias otherwise were entitled to an injunction, the trial court recognized pursuant to

Proctor v. Huntington, 169 Wn.2d 491, 238 P.3d 1117 (2010), that equitable principles

                                             2
No. 34189-5-111
Garcia v. Henley


sometimes dictated a different remedy. Believing that this case was an appropriate one to

consider an alternative remedy, the trial court decided that the fence should remain in its

current location and title to the land be granted to the Henleys. The court ordered them to

pay the Garcias $500 for the value of the additional 33.5 square feet taken by the 2011

rev1s10n.

       The Henleys were also ordered to pay all taxes associated with the corrected

boundary lines, have survey markers installed, and both parties were directed to

cooperate in signing all forms and documents necessary to carry out a boundary line

adjustment.

       After judgment was entered, the Garcias timely appealed to this court. A panel

considered the matter without argument.

                                        ANALYSIS

       The Garcias argue that the trial court did not properly consider the governing

equitable factors, resulting in a failure to enforce their property rights. Their argument

reads too much into the governing cases.

       The decision to eject a trespasser is an equitable remedy. Arnold v. Melani, 75

Wn.2d 143, 152,449 P.2d 800 (1968). Similarly, the decision not to eject a trespasser is

also equitable in nature. Id. The goal of a court acting in equity is to do substantial

justice and end litigation. Carpenter v. Folkerts, 29 Wn. App. 73, 78, 627 P.2d 559

( 1981 ). A trial judge has broad discretionary powers to achieve those ends. In re

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No. 34189-5-111
Garcia v. Henley


Foreclosure ofLiens, 123 Wn.2d 197,204,867 P.2d 605 (1994). The judge's equitable

decision is therefore reviewed for abuse of discretion. Id. Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       The governing cases are Arnold and Proctor. Arnold involved a situation where

the plaintiff's house and fence intruded two- to eight-feet on to their neighbors' property.

75 Wn.2d at 145-146. The defendants removed the fence and demanded that the

plaintiffs remove the house. Finding no adverse possession had occurred and that value

of the loss of use of the land to the plaintiffs was no more than $125, the trial court

declined to enjoin the encroachment or require removal of the home. Id. at 153-154. It

granted the defendants an easement for the encroaching portions of the house. Id. at 154.

The question presented was whether the trial court had the discretion to refuse to grant

the plaintiffs equitable relief. Id. After considering and rejecting other equitable theories

of relief, the court finally turned to the injunction issue.

       Upon reviewing three of its older cases, the Arnold court noted that it was

particularly appropriate to withhold a mandatory injunction as oppressive when ( 1) the

encroacher did not act in bad faith or take a calculated risk to locate the encroaching

structure, (2) the damage to the landowner was slight and the benefit of removal equally

small, (3) there was ample remaining room for a suitable structure and no limitation was




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No. 34189-5-III
Garcia v. Henley


imposed on the land's future use, (4) it was impractical to remove the structure as built,

and (5) there is an enormous disparity in resulting hardships. Id. at 152.

       Ordinarily, even though it is extraordinary relief, a mandatory injunction
       will issue to compel the removal of an encroaching structure. However, it
       is not to be issued as a matter of course. We do not deny that a "sacred"
       right exists in a free society as to the protection of the concept of private
       property; we simply hold that when an equitable power of the court is
       invoked, to enforce a right, the court must grant equity in a meaningful
       manner, not blindly.

Id. The court then concluded that the trial judge had correctly declined to order the

removal of the home. Id. at 154.

       Proctor revisited Arnold and provided a detailed history of encroachment actions

in Washington. Washington initially followed the "property rules" concept in

encroachment cases, an approach that gave the landowner an absolute right to eject

encroachers. 169 Wn.2d at 497. In time, however, Washington also recognized the

"liability rules" approach that granted damages in exchange for property rights. Id. at

497-499. Proctor noted that Arnold represented Washington's first attempt to reconcile

the two approaches. Id. at 499-500.

       Proctor involved a house built one acre onto the plaintiffs rural property due to

joint confusion concerning the meaning of a boundary marker. Id. at 494. Eight years

later the plaintiff noted the intrusion while having the boundary lines clarified due to a

dispute with another neighbor. After negotiations to amend the boundary lines failed, the

plaintiff sued to eject the defendants from his land. Id. at 494-495. The trial court

                                              5
No. 34189-5-111
Garcia v. Henley


declined to eject the defendants, finding that the acre of land was worth $25,000 and that

moving the house elsewhere would cost $300,000. The court ordered the plaintiff to sell

the acre to the defendants for $25,000. Id. at 495. Both parties appealed, with the

plaintiff arguing that he was entitled to the injunction because the intrusion on to his

property was not "slight." Id. at 495-496.

       Reviewing Arnold and its older decision in Bank v. Bufford, 90 Wash. 204, 155 P.

1068 ( 1916), the Proctor court stated that Arnold had "settled the point" that "liability

rules" were permissible. Id. at 499. Proctor read Arnold as based in the trial court's

general equity power and that the test was more than a balancing of equities. Instead, it

was "concerned with the reasoned use of injunctive relief only when an absolute property

rule is appropriate." Id. at 500. Reviewing the case in light of the Arnold factors, the

decision to deny an injunction was upheld. Id. at 501-504. Acknowledging that the acre-

sized encroachment was not slight, the Proctor majority nonetheless recognized the issue

"was not the key question before the trial court. The question was whether, in equity, it

would be fair and just to require the Huntingtons to remove their entire house" due to a

mutual "good-faith surveying mistake." Id. at 503. In the big picture, the trial court was

permitted to view the costs to the plaintiff as minimal, while the costs to the defendant

were great. Id. at 503-504. Recognizing the "evolution of property law," the court

affirmed the trial court. Id. at 504. The dissenters would have treated the Arnold test as




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No. 34189-5-111
Garcia v. Henley


an absolute threshold a party seeking to avoid ejectment must meet. Id. at 504-505

(Sanders, J ., dissenting).

       With these considerations as background, it is time to consider the arguments

raised by the Garcias. They argue that the trial court failed to find the five Arnold factors

on the record and that the evidence did support implied findings for any of the factors.

We disagree with their contentions.

       First, there is no support in the case law for requiring a trial court to enter Arnold
                                                                                                 I
                                                                                                 I
factors on the record. It certainly did not happen in Arnold itself, and it is unclear on the    I


face of the Proctor opinion whether or not the trial court made record findings on the           II
Arnold factors. Since neither party called Arnold or Proctor to the trial court's decision
                                                                                                 I
in its trial briefing, they are not in a position to complain about lack of record findings on   I
the five factors. The Garcias mentioned Proctor in their rebuttal argument, claiming that        II
                                                                                                 !
the Henleys took a calculated risk in moving the fence. The trial judge discussed the            lI
Proctor decision in its letter opinion, further indicating the court's awareness of the          I

issues. On this record, we do not believe the trial judge can be faulted. If the parties had     I
considered Arnold important, they would have tried the case from that perspective.               I
                                                                                                 II
       Nonetheless, the record evidence does support finding the presence of the Arnold          !

factors. First, the Henleys did not necessarily take a calculated risk in moving the fence.
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                                                                                                 i
Mr. Henley testified that he thought he was putting up the replacement fence in the same         l
                                                                                                 !

location. Second, the determination that the damage to the Garcias was slight is amply           iI
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No. 34189-5-111
Garcia v. Henley


supported in the trial record. The court found that only a six inch encroachment occurred

over the final 67 feet. That small figure also easily satisfied the third Arnold

factor--there was still ample room on the property for other structures.

       The fourth factor also could be found by the trial judge. This Arnold factor looks

at whether or not a structure can be moved "as built." Arnold, 75 Wn.2d at 152. A fence,

of course, cannot be moved "as built," but must be unassembled and moved. Semantic

points aside, however, it certainly would be possible to move the fence. This factor does

not weigh heavily in the calculus.

       The final factor is whether there is an enormous disparity of the resulting

hardships. Although the adjective "enormous" likely does not apply here, the hardship

disparity favors the Henleys. Working only on weekends, Mr. Henley took a month to

replace the damaged section of fence. In contrast, the damages for the loss of the land      I
totaled only $500, and the Henleys would have the additional expenses of conforming the      1


legal description of the property to the actual fence line. In contrast, the Garcias would   I
                                                                                             I
lose six inches of apparently unused property.
                                                                                             II
       On balance, all of the factors favor the Henleys to varying degrees. The Garcias,
                                                                                             I
advancing arguments similar to the Proctor dissenters, essentially read the Arnold factors
                                                                                             I
                                                                                             !
as a significant limitation on a trial judge's equitable authority to refuse to enjoin

encroaching neighbors. However, the Proctor majority rejected that interpretation,           II
                                                                                             I
reasoning that the Arnold factors were more of a focusing mechanism that had                 I
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No. 34189-5-III
Garcia v. Henley


application only in those situations where a "property rules" approach might otherwise be

applicable. 169 Wn.2d at 500-501. Indeed, even the appellants in Proctor believed that

the Arnold factors did not justify injunctive relief in the situation where the encroachment

was slight. Id. at 502. The position the Garcias advance here is more rigid than that

proposed-and rejected-in Proctor. As in that case, the trial judge did not err in

refusing to enjoin the Henleys and eject the fence.

       Accordingly, the trial court did not err in applying a "liability rule" approach

instead of the "property rule" approach advocated by the Garcias. Moreover, the

resulting decision was not an abuse of discretion. The trial court's equitable decision

here took into account the entire changes in the boundary line rather than simply the

changes engendered by the 2011 replacement of the eastern edge of the fence. By the

time an action was finally filed following the 2011 repairs, the court was facing afait

accompli. The major variance between the property line and the fence line had been in

place for years, resulting in the Henleys (and their predecessors in interest) having

acquired title to that strip of land by adverse possession. The last major change to the

boundary occurred with the 1997 incursion that the Garcias did not challenge in court.

Title to that land, too, passed to the Henleys by adverse possession several years prior to

the 2011 action. Accordingly, the trial court understandably believed there was need to

adjust the boundaries to account for the land acquired by adverse possession.



                                             9
No. 34189-5-III
Garcia v. Henley


       On top of those changes, not formally recognized until the present case was

concluded, there was the additional six inches of land taken by the 2011 fence

replacement. That de minimis amount of land had no special economic significance to

either the Garcias or to the Henleys. Understandably, moving the fence back six inches

made little sense at this point. Instead, the trial court looked at the entire picture and

came up with a comprehensive solution designed to fix the situation once and for all.

The boundary would be legally adjusted, at the expense of the Henleys,, to recognize the

new property description, which the Henleys had to have marked by a surveyor rather

than by their measurably imprecise fencing practices. 1 The formal adjustment would

save the Garcias some tax assessments in the future and place those costs on the property

that gained from the adjustment. The Garcias would be paid a token sum for the loss of

the six inches.

       Since the vast majority of the property taken by the Henleys (and their predecessors)

could no longer be recovered by the Garcias, the outcome was about as good as the Garcias

could hope. They would gain little or nothing from having the fence moved six inches

back, but they did stand to gain some relief in the future when the adjusted boundaries were


       1
         The Garcias ask this court to order the Henleys to formalize the boundary line
adjustment. We believe the judgment already does so, although the pendency of this
appeal might understandably prevent the parties from acting on it. Clerk's Papers at 78.
If the Henleys fail to adjust the boundary, the Garcias are in a position to enforce the
judgment. If the Henleys believe a formal adjustment is not contemplated by the ruling,
they could seek clarification from the trial court.

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No. 34189-5-III
Garcia v. Henley


officially recognized by the taxing authorities. The damages, minimal though they may be,

recognized the righteousness of their position. The boundary adjustment created certainty

for the future when the current owners eventually seek to sell their respective properties.

      The result here was about as win-win as could happen given the circumstances

facing the trial court. The trial judge exercised his discretion on very tenable grounds and

did not abuse the significant discretion accord~d him.

      The judgment is affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




I CONCUR:




                                             11
                                       No. 34189-5-111

       FEARING, C.J. (dissenting in part) -   This appeal tests the nature of appellate

review. The majority and I agree that an appellate court should defer to factual

evaluations of the trial court. Our disagreement lies in the steps a trial court must adopt

before a reviewing court defers to those evaluations and specifically whether written

findings relevant to the Arnold v. Melani, 75 Wn.2d 143,449 P.2d 800 (1968)

encroachment factors are required. Our trial court's findings of fact and memorandum

opinion do not address those factors. I would remand the case to the trial court for entry

of findings of fact and a further hearing in the event the court deems additional evidence

is needed to enter sufficient findings. To the extent that the majority affirms the trial

court's ruling without entry of additional findings, I dissent.

       Ricardo and Luz Garcia sue neighbors Ted and Audean Henley because, in 2011,

the Henleys situated a fence further south on the Garcias' Tieton land. Earlier

replacements of the fence also invaded the Garcias' property. The trial court recognized

the encroachment, but refused to order the Henleys to return the fence to its pre-2011

location. The trial court instead granted the Garcias damages of $500 representing the

fair market value of the taken land.
No. 34189-5-III
Garcia v. Henley (dissenting in part)


       The Washington Supreme Court has occasionally addressed the circumstances

under which a trial court may deny a landowner the remedy of ejectment when a

neighbor encroaches on the landowner's property with the assumption that, if the trial

court denies the remedy, the court will award damages for the private taking of property.

The high court's decision in Proctor v. Huntington, 169 Wn.2d 491, 238 P.3d 1117

(2010) includes an excellent historical narrative of the high court's treatment of this

question beginning with early twentieth century decisions. Initially, Washington, under

the concept of the sacred standing of property rights, always granted the remedy of

ejectment for an encroachment. As time passed, the Washington high court, citing equity

and contemporary notions of justice, permitted trial courts to deny ejectment and award

money damages under limited circumstances. These later Supreme Court rulings

engendered strong dissents that lamented the eroding of property rights and complained

of unconstitutional takings of private property.

       In 1968, our Evergreen State Supreme Court formulated five factors that a trial

court must find before denying an ejectment or injunctive relief for an encroachment.

Arnold v. Melani, 75 Wn.2d 143. The court held that a mandatory injunction can be

withheld as oppressive when:

              (1) The encroacher did not simply take a calculated risk, act [in] bad
      faith, or negligently, willfully or indifferently locate the encroaching
      structure;
              (2) the damage to the landowner was slight and the benefit of
      removal equally small;


                                             2
No. 34189-5-III
Garcia v. Henley (dissenting in part)


              (3) there was ample remaining room for a structure suitable for the
       area and no real limitation on the property's future use;
              (4) it is impractical to move the structure as built; and
              (5) there is an enormous disparity in resulting hardships.

Arnold v. Melani, 7 5 Wn.2d at 152. The high court reaffirmed utilization of these factors

in Proctor v. Huntington, 169 Wn.2d 491 (2010). Since the high court listed the factors

in the conjunctive, presumably the trial court must find all five factors for the court to

deny ejectment.

       The Washington Supreme Court, in Arnold v. Melani, added parameters to the

application of the five factors. A property owner still enjoys a sacred right to the

protection of private property, and this protection is essential to a free society. Arnold v.

Melani, 75 Wn.2d at 152. Therefore, a mandatory injunction will ordinarily be issued to

compel the removal ofan encroachment. Arnoldv. Melani, 75 Wn.2d at 152. Denial of

an injunction is for the exceptional case. Arnold v. Melani, 75 Wn.2d at 152. The

encroacher must prove the five elements by clear and convincing evidence. Arnold v.

Melani, 75 Wn.2d at 152.

       Proctor v. Huntington, 169 Wn.2d 491 (2010) does not detract from the important

constraints announced in Arnold v. Melani. Proctor reinforced the general rule as

requiring an injunction. Proctor v. Huntington, 169 Wn.2d at 504. The dissent, without

disagreement from the majority, emphasized the need to find each of the five elements by

clear and convincing evidence. Proctor v. Huntington, 169 Wn.2d at 505 (Sanders, J.,

dissenting).

                                              3
No. 34189-5-111
Garcia v. Henley ( dissenting in part)


       The trial court in this appeal entered a conclusion of law that reads:

               Although Plaintiffs typically would be entitled to an injunction, the
       Washington Supreme Court in Proctor v. Huntington, 169 [Wn].2d 491,
       238 P.3d 1117 (2010) recognized in certain adverse possession
       [encroachment] cases that equitable principles may dictate a different result
       as to an appropriate remedy .... [T]he court concludes that the fence
       between the Plaintiffs' and Defendants' properties should remain in its
       current location, and that title to the Plaintiffs' property that is subject to
       ejectment should be granted to the Defendants.

Clerk's Papers (CP) at 74-75. Nevertheless, the court entered no findings of fact that

addressed the five Arnold factors. The trial court wrote in its memorandum opinion:

              Normally, the Plaintiffs would be entitled to an injunction, directing
       the Defendants to remove the fence and restore the property line as
       determined by the Court. However, in [Proctor v. Huntington,] 169
       [Wn].2d 491, 238 P.3d 1117 (2010), the Supreme Court recognized in
       certain adverse possession [encroachment] cases, equitable principles might
       dictate a different result as to an appropriate remedy. I believe this case
       does warrant application of those equitable principles.

CP at 28. The memorandum opinion lacks a discussion of any facts supporting this

ruling. Both the conclusions of law and the memorandum opinion lack any mention of

the controlling Arnold factors so we cannot be certain that the trial court reviewed all of

the factors.

       We do not know whether Ted and Audean Henley acted in good faith when

moving the fence line in 2011. Ricardo and Luz Garcia readily saw that the relocated

fence was further south when they returned from their trip. Ted and Audean Henley

could have also readily observed that they encroached on the Garcias' land when erecting

the new fence. The record shows no steps having been taken by the Henleys in 2011 to

                                             4
No. 34189-5-111
Garcia v. Henley (dissenting in part)


ensure they did not move the location of the fence further south. When re-erecting the

fence twice earlier, the Henleys trespassed further on the Garcias' tract. One might

wonder why each time the Henleys reinstalled a fence the three mistaken locations

always benefited them.

       The fence is the only object encroaching on Ricardo and Luz Garcia's land. Ted

and Audean Henley have already moved the fence at least thrice. The record contains no

evidence of any impracticality of returning the fence to its earlier 2011 location. The

record contains no evidence of the cost of moving the fence or a weighing of that cost

with the harm to Ricardo and Luz Garcia of the taking of their land.

       The majority faults Ricardo and Luz Garcia for not discussing the Arnold factors

with the trial court before the court's ruling. In doing so, the majority blames the Garcias

for failing to respond to a claim about which they lacked notice. The Garcias wanted

ejectment, not damages. In their answer to the complaint and cross claim, Ted and

Audean Henley denied that the Garcias owned the disputed land. The Henleys' pleading

did not seek denial of an ejectment on the basis of the Arnold equity principles. In their

trial brief, Ted and Audean Henley argued that they owned the property by adverse

possession. They did not ask that the court deny ejectment under equity. The Henleys

did not raise the Arnold factors during closing argument. The Henleys never cited, for

the trial court, Arnold or Proctor v. Huntington. Therefore, the Garcias possessed no

reason and no purpose for mentioning or analyzing the Arnold factors for the trial court.


                                             5
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No. 34189-5-111
Garcia v. Henley (dissenting in part)                                                         I   I
                                                                                                  I
                                                                                                  I
If Ted and Audean Henley wanted equitable relief under Arnold, the Henleys should have
                                                                                              I   I

put the Garcias on notice and discussed the factors. Presumably the trial court                I
                                                                                                  i
determined on its own to follow Arnold v. Melani and Proctor v. Huntington.
                                                                                              lI
       The majority emphasizes the area of the encroachment being 33.5 square feet.           II
                                                                                               I
This small measure should be a factor considered by the trial court. Nevertheless, size       !
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does not control.                                                                             I!
       The majority fails to note the continuing encroachments on Ricardo and Luz             I'
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                                                                                               I
Garcia's real property by Ted and Audean Henley. The Henleys now know that each               I

                                                                                              I
time they replace the fence, they may encroach further on the Garcias' land and oblige        "
the Garcias to sue, with the end result that the Henleys receive more territory while the     1


Garcias receive damages exponentially lower than the cost of litigation.                      I
       To repeat a key rule of encroachment law, Ted and Audean Henley carried the            I
burden to prove by clear and convincing evidence all five elements emanating from             t
                                                                                              l
Arnold v. Melani. Ordinarily the failure to enter specific findings as to material facts is   I
                                                                                              !




equivalent to a finding against the party who has the burden of proof. Pacesetter Real
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                                                                                              I'.
Estate, Inc. v. Fasules, 53 Wn. App. 463, 475, 767 P.2d 961 (1989). Therefore, this court     •

could reverse the trial court's judgment and remand for entry of an ejectment. I only
                                                                                              !
advocate a remand for further findings.
                                                                                              i
       The majority correctly observes that no decision expressly requires the trial court    l
                                                                                              l
to enter findings of fact with regard to all Arnold factors. Nevertheless, the opposite is
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                                              6                                               I
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No. 34189-5-III
Garcia v. Henley (dissenting in part)


also true. No decision expressly excuses a trial court from entering findings of fact.

Obviously the trial court, in Arnold v. Melani, entered no findings of fact relevant to the

factors since the Supreme Court had yet to announce the factors. So Arnold cannot stand

for the proposition that the factors need not be expressed in findings. As conceded by the

majority, the record is not clear as to whether the trial court entered sufficient findings in

Proctor v. Huntington, 169 Wn.2d 491 (2010).

       Washington law is replete with examples where the appellate court reverses and

remands for a further hearing if the trial court failed to consider all of the relevant factors

on the record. I attach an appendix that nonexhaustively lists decisions demanding a

review of all factors on the record.

       Ideally, trial courts will enter findings of fact on each factor. In re Marriage of

Horner, 151 Wn.2d 884, 895, 93 P.3d 124 (2004). Findings of fact play a pivotal role

upon review. The purpose of findings on ultimate and decisive issues is to enable an

appellate court to intelligently review relevant questions on appeal and, only when it

clearly appears what questions were decided by the trial court and the manner in which

they were decided, are the requirements met. Schoonover v. Carpet World, Inc., 91

Wn.2d 173, 177, 588 P.2d 729 (1978). Nevertheless, the trial court may be excused from

entering express findings of fact if a party presented substantial evidence on each factor

and the trial court's oral opinion and written findings of fact reflect that the court

considered each factor. In re Marriage of Croley, 91 Wn.2d 288, 290-93, 588 P.2d 738


                                               7
No. 34189-5-111
Garcia v. Henley (dissenting in part)


(1978). Some decisions even entail the Court of Appeals reviewing the record on its own

to determine the satisfaction oflegal factors. State v. Avila, 78 Wn. App. 731, 735-36,

899 P.2d 11 (1995). Hopefully, the reviewing court's examination of the entire record to

find facts is a rare exception, because such review contravenes standards of appellate

review.

        This reviewing court in this appeal should not independently review the entire

record to determine the satisfaction of the Arnold factors. The trial court entered no

findings of fact on any of the five required factors. The court's memorandum opinion

also does not address the factors. The record contains no testimony concerning the cost

to move the fence. The credibility of Ted and Audean Henley is key in determining

whether they acted in bad faith or good faith. This credibility should be weighed by the

trier of fact.

        Another reason compels a remand for a further review. Our trial court's decision

fails to mention whether the court based its ruling on clear and convincing evidence. For

all we know, the trial court based its decision only on a preponderance of evidence. In In

re Custody ofA.L.D., 191 Wn. App. 474, 363 P.3d 604 (2015), we reversed a trial court's

decision awarding custody of a child, in part, because the trial court failed to note that it

applied the required clear and convincing evidentiary standard. The majority ignores the

burden imposed on Ted and Audean Henley.

        An anomaly exists between Arnold v. Melani and Proctor v. Huntington. In the


                                              8
No. 34189-5-111
Garcia v. Henley (dissenting in part)


former case, the trial court granted, and the Supreme Court affirmed the granting of, an

easement to the encroacher. In the latter decision, the trial court granted, and the

Supreme Court affirmed the granting of, fee title to the encroacher. Neither opinion

weighs the suitability of an easement rather than fee title or vice versa as part of the

remedy. I would grant an easement rather than fee title, since the encroacher fails to

prove adverse possession. In the event the encroacher abandons its use of the property,

the easement could revert or lapse for nonuse. Smith v. Gilbraith, 75 Ohio App. 3d 428,

599 N.E.2d 798, 802 (1991); Oregon Department a/Transportation v. Tolke, 36 Or. App.

751,586 P.2d 791, 795-96 (1978). A grant of fee title would not revert for nonuse alone.

       I would vacate the trial court's decision and remand to the trial court for further

entry of findings of fact and, if needed, additional evidence.




                                              9
No. 34189-5-III
Garcia v. Henley (dissenting in part)
Appendix



                                        APPENDIX

      Competency of a child to testify. State v. Allen, 70 Wn.2d 690,692,424 P.2d

1021 (1967).

      Admitting evidence of prior misconduct under ER 404(b ). State v. Asaeli, 150

Wn. App. 543, 576 n.34, 208 P.3d 1136 (2009).

      Admissibility of convictions to impeach the accused under ER 609. State v.

Alexis, 95 Wn.2d 15, 19-20, 621 P.2d 1269 (1980); State v. Delker, 35 Wn. App. 346,

349, 666 P.2d 896 (1983); State v. Barringer, 32 Wn. App. 882, 885-86, 650 P.2d 1129

(1982).

      Imposition of discovery sanctions. Foss Maritime Co. v. Brandewiede, 190 Wn.

App. 186, 196-97, 359 P.3d 905 (2015), review denied, 185 Wn.2d 1012, 367 P.3d 1083

(2016).

      Award of spousal maintenance under RCW 26.09.090. In re the Marriage of

Monkowski, 17 Wn. App. 816, 819, 565 P .2d 1210 (1977).

      Division of property and liabilities in a marital dissolution proceeding under RCW

26.09.080. In re Marriage of Monaghan, 78 Wn. App. 918,920,899 P.2d 841 (1995).

      Award of primary residential placement of children during marriage dissolution

proceeding under RCW 26.09.187. In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854

P.2d 629 (1993).


                                           10
No. 34189-5-111
Garcia v. Henley (dissenting in part)
Appendix


      Relocation of a child's custodian under RCW 26.09.520. In re Marriage of

Horner, 151 Wn.2d at 892-93 (2004).

      Trial continuances in conflict with speedy trial rules. State v. Williams, 85 Wn.2d

29, 32, 530 P.2d 225 (1975); State v. Freeman, 38 Wn. App. 665, 667-68, 687 P.2d 858

(1984).

      Departure from standard range sentence under Sentencing Reform Act of 1981,

chapter 9.94A RCW. State v. Cardenas, 129 Wn.2d 1, 5-6, 914 P.2d 57 (1996).

      Review of Ishikawa or Bone-Club factors before closing courtroom to public.

State v. Rainey, 180 Wn. App. 830, 836, 327 P.3d 56 (2014); State v. White, 152 Wn.

App. 173, 180-81, 215 P.3d251 (2009).

      Applying the most significant relationship test for a choice of law determination.

Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 735-36 n.6, 254 P.3d 818- (2011).




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