                                                          ,       LEO
                                                        COURT OF
                                                                 APPEALS`DIY
                                                         STATE OF WASHINGTON I
                                                       2018 JAN 16 AN 11:
                                                                          42

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SPUR GROWTH TRUST; MARK J.
SHULER and MAURI MOORE SHULER,                         No. 75965-5-1
husband and wife; and MATTHEW N.
PONTIOUS,

                        Appellants,                    DIVISION ONE

       V.                                              UNPUBLISHED OPINION

CCOS LAKE UNION BOAT CENTER,
LLC, a Washington limited liability
company; and COLLEGE CLUB OF
SEATTLE, a Washington nonprofit
organization,

                        Respondents.                   FILED: January 16, 2018

      APPELWICK, J. — Spur sought to quiet title in parking spaces allegedly

conveyed by the previous owner of CCOS's property. The conveyances did not

satisfy the statute of frauds. But, Spur argues that the conveyances nevertheless

granted an easement under the doctrine of part performance. The trial court

granted CCOS's motion for summary judgment. We affirm.

                                      FACTS

      Allison Marina LLC owned slips one, two, three, and five, at a marina on

Lake Union. It also owned nineteen parking spaces located at another nearby

condominium, Tramonti at Lake Union. Allison slip one and Tramonti were owned

by the same individual, Rome Ventura, the founder of Lake Union Crew. Ventura

was the sole member of Allison Marina.
No. 75965-5-1/2



      In 2005, Allison sold slip two to Greg Bauman, who subsequently sold his

interest to the Spur Growth Trust) In 2006, Allison sold slip three to Matthew

Pontious. In 2007, Allison sold slip five to Mark and Mauri Shuler. Each of the

deeds used in these sales contained an addendum that granted use of a parking

space. None of the addendum used the term easement, and none defined the

nature of the purchasers' interest in those parking spaces.

      In 2013, in anticipation of Ventura/Allison selling slip one, the owners of all

six slips, including Ventura, entered into an agreement regarding parking. That

agreement stated that

      the following matters are hereby clarified for all owners, present and
      future:

      • The existing right of Slips #2 through #6 to park vehicles in the
        garage spaces at 2920 Eastlake Ave East is reserved and limited
        to the following allocation:

             •    Slip #2, Parking Stall #36
             •    Slip #3, Parking Stall #35
             •    Slip #4, Parking Stall #8
             •    Slip #5, Parking Stalls #9 and #33
             •    Slip #6, Parking Stall #10

This document was not in deed form. Spur2 concedes that this agreement was

never recorded. Ventura then sold her interest in slip 1 and the nineteen Tramonti

parking spaces, to CCOS Lake Union Boat Center LLC. Ventura also provided

CCOS with a copy of the 2013 parking agreement prior to that sale.



        Russ and Jill Mann are trustees of the Spur Growth Trust, a Washington
revocable trust.
      2 We refer to Spur, the Shulers, and Pontious collectively as "Spur."



                                         2
No. 75965-5-1/ 3



       CCOS refused to honor the other slip owners' claim to parking spaces. Spur

filed a complaint to quiet title. The trial court granted summary judgment to CCOS,

and quieted title in its favor. Spur appeals.

                                     DISCUSSION

       Spur's sole argument is that the trial court erred in granting summary

judgment to CCOS. Spur concedes that the parking conveyances fail the rules set

for in the statute of frauds. RCW 64.04.010, .020. But, it argues that a rational

trier of fact could have found that the doctrine of part performance applies, and

therefore violation of the statute of frauds is not fatal.

       When reviewing a summary judgment order, this court engages in the same

inquiry as the trial court. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d

400 (1999). Summary judgment is proper when there are no genuine issues of

material fact, and the moving party is entitled to judgment as a matter of law. Id.

All facts and reasonable inferences are considered in the light most favorable to

the nonmoving party. Id. Questions of law are reviewed de novo. Id.

       Under the doctrine of part performance, an agreement not in compliance

with the statute of frauds may be specifically enforced if there is sufficient part

performance of the agreement. Berg v. Ting, 125 Wn.2d 544, 556, 886 P.2d 564

(1995). The doctrine of part performance is an equitable doctrine that provides the

remedies of damages or specific performance for agreements that would otherwise

be barred by the statute of frauds. DewBerry v. George, 115 Wn. App. 351, 361,

62 P.3d 525 (2003).



                                            3
No. 75965-5-1/4



       To satisfy the doctrine of part performance, there must be clear and

unequivocal evidence that leaves no doubt as to the terms, character, or existence

of the contract. Miller v. McCamish, 78 Wn.2d 821, 829, 479 P.2d 919 (1971);

Losh Family, LLC v. Kertsman, 155 Wn. App. 458,465, 228 P.3d 793(2010). We

then look to three factors to be certain the contract existed and to determine its

terms: (1) delivery and assumption of actual and exclusive possession; (2)

payment or tender of consideration; and (3) the making of permanent, substantial

and valuable improvements, referable to the contract. Berg, 125 Wn.2d at 556.

These three factors serve as an evidentiary function to allow the court to be certain

the contract existed and its terms. Losh, 155 Wn. App. at 465-66.

       Spur cites Kirk v. Tomulty,66 Wn.App. 231,831 P.2d 792(1992)in arguing

that the conveyance here created an easement. In Kirk, we reasoned that, when

there is any ambiguity as to the existence of an easement, we look to the

construction of pertinent language, the circumstances of the transaction and

parties, the subject matter, and the subsequent acts of the parties involved. Id. at

238. The easement in that case explicitly provided for easements—the deed

conveyed "a sixty foot easement" and "a thirty foot easement." Id. at 233. We

ultimately found that the easement was valid under,part performance. Id. at 238.

One commentator has observed that the Kirk holding is the only instance where a

Washington court has clearly applied the doctrine of part performance to create an

easement. 17 WILLIAM B. STOEBUCK, WASHINGTON PRACTICE: REAL ESTATE:

PROPERTY LAW § 2.8 (2004).


                                         4
No. 75965-5-1/ 5



       And, the situation here is distinguishable from Kirk, because none of the

deeds at issue here refer to a parking easement. The Bauman conveyance

included "the use of 1 Lake Union Crew parking stall, #26, at 2920 Eastlake Ave

E., on a 24/7 Basis [sic]. . . . Parking space usage to be transferred with future sale

of slip #2." This purports to only a future transfer of usage rights to a parking

space. Even viewed in the light most favorable to Spur, at most, this arguably

conveyed a license interest. No rational trier of fact would find this clear and

unequivocal as to the terms and character of the agreement constituting an

easement.

       The Pontious conveyance included "a parking space at the Tramonti at Lake

Union, access to one of the spaces indicated by 'Lake Union Crew." This did not

even identify the particular parking space that Pontious received. And, like the

Bauman conveyance, it does not in any way identify the nature of the interest

conveyed as an easement.

       The Shuler conveyance stated: "IT IS AGREED BETWEEN THE BUYER

AND SELLER AS FOLLOWS:. . . 2 parking places in Tramonti @ Lake Union, as

available in Lake Union Crew spots on Level I-commercial parking." This, too,

does not identify any conveyance of a particular parking space. It does not identify

the nature of the interest being conveyed as an easement to one or any one of the

parking spaces in the lot. And, the parking access is only "as available," which

suggests that the use of the parking space was merely permissive.




                                          5
No. 75965-5-116



       The subsequent "clarifying" parking agreement does not change this

interpretation. The parking agreement speaks in terms of an "existing right" of slips

2 through 6 to park cars. But, like the deeds, it does not refer to an easement. Nor

does it use any other language that suggests an irrevocable permanent property

interest in favor of the slip owners. Even viewed in the light most favorable to Spur,

it does not make the existence of an easement clear and unequivocal.

       Spur also argues that granting summary judgment on this ground usurps

the role of the trier of fact, who is better positioned to determine credibility of

evidence and whether it is clear and unequivocal.3 But, courts need not defer to

the trier of fact when reasonable minds would not disagree. Owen v. Burlington

N. & Sante Fe R.R., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005). And, here,

reasonable minds would not disagree on whether the circumstances amount to a

clear and unequivocal conveyance of an easement. The deeds do not in any way

describe the nature of the interest conveyed. Two of the three deeds do not even

identify which parking spaces were conveyed. One of the deeds stated that use

of the parking space was merely "as available." No reasonable person would find

a clear and unequivocal conveyance of an easement. This is not enough to create




       3 On this point, Spur relies heavily on Berg, and describes it as a "landmark"
case. It provides multiple quotes from a concurring/dissenting opinion, and states
that "the appellate court ruled that neither party won summary judgment and the
case was remanded for trial." But, the Supreme Court's majority opinion in Berg
affirmed summary judgment, and held that "the doctrine of part performance does
not apply in this case to take the grant of easement out of the statute of frauds.
We reinstate summary judgment." 125 Wn.2d at 563.
No. 75965-5-1/ 7



a question for the trier of fact. The trial court did not usurp the role of the trier of

fact. Summary judgment was proper.

       We affirm.



WE CONCUR:                                    /17€‘
                                                 24 '4




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