                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          August 28, 2018




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    MATTHEW A. JOHNSON AND AMY K.                                    No. 50113-9-II
    JOHNSON, husband and wife,

                                Appellants,

    MARK SCHOMAKER AND KATHERINE
    SCHOMAKER, husband and wife,

                                Plaintiffs,

         v.

    LAKE CUSHMAN MAINTENANCE CO., a                          PART PUBLISHED OPINION
    Washington non-profit corporation,

                                Respondent.

        LEE, A.C.J. — Matthew and Amy Johnson1 brought an action against their homeowners’

association, Lake Cushman Maintenance Company (LCMC), to quiet title to a park and road

easement LCMC held in their property, and for trespass, waste, nuisance, and timber trespass.

LCMC counterclaimed to quiet title in fee or to an exclusive easement.

        LCMC moved for summary judgment on the Johnsons’ quiet title, trespass, waste, timber

trespass, and nuisance claims. The superior court granted LCMC’s motion for summary judgment

in part and dismissed the Johnsons’ claims for trespass, waste, timber trespass, and quiet title. The


1
 Mark and Katherine Schomaker were also parties to this lawsuit in the superior court, but they
did not file a notice of appeal.
No. 50113-9-II


superior court also quieted title in LCMC to an exclusive easement for park and road purposes,

free and clear of any claim for use of the property by the Johnsons, except in their capacity as

LCMC members. The superior court further enjoined the Johnsons, their heirs, executors, agents,

and assigns from asserting any right, title, or interest in the exclusive easement, and from

interfering with LCMC’s use and enjoyment of the easement. The Johnsons appeal.

       We hold that the superior court did not err in dismissing the Johnsons’ quiet title, trespass,

waste, timber trespass, and injunction claims. However, we also hold that the superior court erred

in quieting title in LCMC to an exclusive easement free and clear of any claim for use by the

Johnsons because LCMC failed to show that there was no genuine issue of material fact that their

easement was intended to be an exclusive easement. Because the superior court erred in quieting

title in LCMC to an exclusive easement, the superior court also erred in enjoining the Johnsons,

their heirs, executors, agents, and assigns from asserting any right, title, or interest in or to the

exclusive easement quieted in LCMC.

       In the unpublished portion of this appeal, we hold that the superior court erred in striking

the portion of Schomaker’s affidavit related to payment of taxes on the property, but it did not err

in striking the other portions of the submitted affidavits.

       Accordingly, we affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.




                                                  2
No. 50113-9-II


                                              FACTS

A.     OWNERSHIP OF THE LAND

       The City of Tacoma owns a large tract of land adjoining the Cushman project reservoir.2

The City decided to make the existing Cushman project reservoir available for recreational use

and to privately develop the tracts of land on or near the reservoirs.

       In March 1966, the City entered into a 99 year lease with Lake Cushman Company [LCC],

a private developer. The lease provided LCC the right to use the waters of the lakes for recreational

purposes, including boating, swimming, and fishing. The lease also provided that it was “mutually

understood by the parties hereto that [LCC] may sublet any part or portion of the lands hereby

leased for any period or periods within the lease term upon such sublease forms first approved by

the City Attorney of Tacoma.” Clerk’s Papers (CP) at 142.

       In June, LCC formed Lake Cushman Maintenance Company [LCMC], a non-profit

corporation, for the express purpose of developing, repairing, maintaining, and operating the land

that LCC had leased from the City of Tacoma. LCMC would also levy and collect dues or

maintenance fees from the sublessees of the property within the subdivisions of Lake Cushman,

as established by the LCC. LCC created LCMC to “act as a homeowners’ association for the

operation, maintenance and repair of the common areas of the development.” CP at 293

       In February 1983, LCC created an “easement for the exclusive use of the Lake Cushman

Maintenance Co., its successors and assigns, for park and road purposes over . . . [t]hat portion of


2
  Located on the Olympic Peninsula, the Cushman Project “is a hydroelectric generating facility .
. . consisting of two dams on the north fork of the Skokomish River, two reservoirs, two
powerhouses and transmission lines. It supplies about 5 percent of the electrical needs of Tacoma
Power’s        160,000       customers.”                TACOMA           PUBLIC         UTILITIES,
http://www.mytpu.org/file_viewer.aspx?id=700 (last visited Aug. 13, 2018).


                                                  3
No. 50113-9-II


Lot 62 in the Plat of Lake Cushman No. 14.” CP at 151. The easement was recorded in the Mason

County Auditor’s Office under Auditor’s File No. 414987.

       In May, LCC subdivided Lot 62 into four smaller lots (Lots 1-4) under short plat 1260.

The legal description for Lots 1-4 of short plat 1260 stated that Lot 1 was “subject to an easement

in favor of Lake Cushman Maintenance Co. for road and park purposes[,] recorded under Auditor’s

File No. 414987.” CP at 156. The legal descriptions for Lots 1-4 in short plat 1260 was recorded

under Mason County Auditor’s File No. 415052.

       In October, LCC subleased Lot 1 to Stephen and Carol Brandt. The lease agreement

described the land leased as “[t]hat portion of Lot 62 in the Plat of Lake Cushman No. 14, recorded

in Volume 9 of Plats, Pages 17 through 19, records of Mason County, Washington described as

follows: See Exhibit “A” for legal description.” CP at 94. Exhibit A was a copy of the legal

description for Lot 1 in short plat 1260.

       In March 2014, Matthew and Amy Johnson obtained a leasehold interest in Lot 1 of the

short platted Lot 62 through an assignment of lease. The assignment of lease referenced short plat

1260, provided a legal description of Lot 1 in short plat 1260, and stated that the land assigned was

“subject to easements, restrictions, covenants, reservations, agreements, and conditions of record.”

CP at 168 (capitalization omitted). The assignment of lease also included a list of special

exceptions and included the “[e]asement, including its terms, covenants and provisions as

disclosed by instrument; Recorded: May 12, 1983 Recording No: 414987 For: park and road

purposes Affects: portion of said premises.” CP at 170. The special exceptions under the

assignment of lease also referenced the “[c]ovenants, conditions, restrictions, recitals, disclaimers,

notices, agreements [and/or] easements as contained in Short Plat No. 1260.” CP at 171. And



                                                  4
No. 50113-9-II


included in the assignment of lease was a survey depicting Lot 1 of short plat 1260. The survey

showed the boundaries of the easement “FOR PARK AND ROAD PURPOSES A.F. NO. 414987

GRANTED PRIOR TO SHORT PLAT NO. 1260.” CP at 173. In accepting the assignment of

lease, the Johnsons acknowledged that they “accept all of the terms, covenants, conditions and

agreements of the assigned Lease” and “agree to be bound thereby.” CP at 167.

B.     LITIGATION BETWEEN THE JOHNSONS AND LCMC

       1.        The Johnsons File Complaint to Quiet Title

       Shortly after subleasing Lot 1, the Johnsons began to notice trash and debris accumulating

on the park easement located on their property. The debris mostly consisted of contraband,

including alcohol containers, makeshift pipes, and needles. According to the Johnsons, every time

they removed the contraband from the park on their property, more would appear. The Johnsons

also began to hear noise and “late night partying.” CP at 212. The Johnsons believed that these

“trespassers” were responsible for the needles and drug paraphernalia continuously left on their

property. CP at 212. According to the Johnsons, LCMC employs security to monitor the park

until 5 PM. After security leaves for the day, “a rush of cars . . . come pouring in” to use the park

after hours. CP at 214.

       Frustrated with LCMC’s response to their complaints, the Johnsons began posting “no

trespassing” signs throughout the park easement area. CP at 213. LCMC removed these signs.

The Johnsons also erected a gate and several hedges, which LCMC claimed limited access to the

park easement.

       On June 23, 2015, the Johnsons filed a complaint to quiet title to the park easement,

claiming that the easement was void. The Johnsons sought an order declaring the park easement



                                                 5
No. 50113-9-II


void, arguing that LCC and LCMC were so intertwined and related that the park easement was a

grantor easement and, thus, invalid. The Johnsons also sought an injunction prohibiting LCMC

and its members from using the park easement “in any manner.” CP at 318. The Johnsons also

brought causes of action against LCMC for trespass, waste, nuisance, and timber trespass.

       LCMC filed an answer, asserting that its successors, and assigns were the benefited

“owners of a fee title or an exclusive easement” over and across the park located on the Johnsons’

property.3 CP at 311. LCMC also raised several affirmative defenses, including that LCMC had

“established fee title” to the park through adverse possession, had established a prescriptive

easement, or alternatively had an implied easement to the property. CP at 312.

       LCMC also filed a counterclaim, asserting that LCC had granted LCMC “an exclusive

easement which included right to exclude the plaintiffs as owners of the servient estate from using

the property in any way.” CP at 313. LCMC further asserted that its

       exclusive easement is an unusual interest in land amounting to almost a conveyance
       of the fee title to [LCMC]. The grant of an exclusive easement to [LCMC]
       conveyed unfettered rights to [LCMC] as owner of the easement to use that
       easement for purposes specified in the grant to the exclusion of all others, including
       the plaintiffs.

CP at 313.




3
  The City of Tacoma, the true fee title owner of the property, was never made a party to this
lawsuit.


                                                 6
No. 50113-9-II


       In its prayer for relief, LCMC requested a decree “adjudging” LCMC “to be the owner” of

the park “in fee or exclusive easement, quieting its title thereto and barring [the Johnsons] . . . from

asserting any interest therein superior to the title of [LCMC].” CP at 314. LCMC also requested

an injunction permanently prohibiting the Johnsons from interfering with LCMC’s quiet and

peaceful enjoyment of the park property.

       2.       LCMC’s Motion for Summary Judgment

       On October 13, 2016, LCMC filed a motion for summary judgment, seeking dismissal of

the Johnsons’ quiet title, trespass, waste, and timber trespass claims. LCMC argued that the

Johnsons’ claim that the easement was a grantor easement was without merit because LCC is a

privately held, for-profit corporation, while LCMC is a non-profit homeowners’ association.

LCMC also argued that the easement “clearly and unambiguously” created an exclusive easement

because the language states the easement was “ ‘for the exclusive use of the Lake Cushman

Maintenance Co..’ ” CP at 179 (emphasis omitted). According to LCMC,

       Lake Cushman Co. clearly and unambiguously created an exclusive easement for
       LCMC to use the southerly portion of Lot 1, Short Plat 1260 for park purposes.
       Plaintiffs therefore have no right to use of any of the easement area except as
       members of LCMC and subject to LCMC rules and regulations for member use.

CP at 182-83.

       In response, the Johnsons argued that LCMC and LCC were the same entity because (1)

LCMC was formed to administer recreational opportunities to members of LCC and LCMC, and

(2) the trustees of both companies were the same. The Johnsons further argued that LCMC did

not have the right to exclude them from using the easement because they were the servient estate.

The Johnsons also argued that the easement was “clearly to be used solely for ingress and egress

to the boat launch and viewpoint.” CP at 132.


                                                   7
No. 50113-9-II


       In support of their arguments, the Johnsons provided a declaration of Matthew Johnson,

which stated that “[a] portion of our property that LCMC has been using for the road and viewpoint

is clearly not being used only for residential purposes, which is contrary to the original covenants.”

CP at 48. The Johnsons also provided a declaration of Mark Schomaker, who had leased a lot at

Lake Cushman for approximately 24 years. Schomaker stated that to his knowledge, LCMC had

not paid any taxes on the portion of his property containing the easement.

       The Johnsons also filed a declaration of Gary Christman, who has lived within the

subdivision of Lake Cushman developed by LCC since 1979. According to Christman, an area on

the easement that LCMC claimed had been used as a parking lot, “had only ever been used for the

owner access.” CP at 113.

       Finally, the Johnsons filed a declaration of Bonnie Bunmaster, a “lot owner” of Lake

Cushman since 1982.        CP at 117.     According to Bunmaster, “[t]he only portion of the

Johnson/Schomaker property that has ever been used or maintained is the road, and the path to the

viewpoint.” CP at 118. Bunmaster also claimed to frequent the viewpoint regularly and had never

seen any other LCMC members or anyone else use the hillside near the area. Bunmaster further

asserted that the “lower flat area North of the road has never been used by the membership. This

has always been a driveway for the owners of the Johnson/Schomaker property.” CP at 118.

       3.      Ruling on Summary Judgment Motion

       The superior court granted LCMC’s motion for summary judgment in part, dismissing the

Johnsons’ claims for trespass, waste, timber trespass, and quiet title.4 The court also ordered that,



4
  The superior court denied LCMC’s motion for summary judgment on the Johnsons’ nuisance
claim. The Johnsons’ remaining nuisance claim was later dismissed by stipulated order.


                                                  8
No. 50113-9-II


“Lake Cushman Maintenance Company’s title in and to an exclusive easement for park and road

purposes . . . is quieted in [LCMC] free and clear of any claim for use of the property by plaintiffs,

except for any right of use related to their membership in Lake Cushman Maintenance Company.”

CP at 14. The superior court further ordered that, “Plaintiffs and their heirs, executors, agents and

assigns are perpetually enjoined from asserting any right[,] title[,] or interest in or to the exclusive

easement herein quieted in defendant and are further enjoined from interfering with defendant’s

use and enjoyment of said easement.” CP at 14.

       The Johnsons appeal.


                                             ANALYSIS

       The Johnsons assign error to certain findings of fact and conclusions of law entered by the

superior court. The Johnsons also assign error to the superior court’s failure to make certain factual

findings.

       On review of summary judgment, we review de novo whether there are any genuine issues

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

CR 56(c). Therefore, “ ‘[f]indings of fact and conclusions of law are not necessary on summary

judgment and, if made, are superfluous.’ ” Nelson v. Dep’t of Labor & Indus., 198 Wn. App. 101,

109, 392 P.3d 1138 (2017) (quoting Concerned Coupeville Citizens v. Town of Coupeville, 62 Wn.

App. 408, 413, 814 P.2d 243, review denied, 118 Wn.2d 1004 (1991)), review denied, 190 Wn.2d

1025 (2018). Therefore, we do not address the Johnsons’ assignments of error to specific findings

of fact and conclusions of law on summary judgment.

       The Johnsons also assign error to the superior court’s grant of summary judgment in favor

of LCMC on the Johnsons’ claims for quiet title, waste, trespass, and timber trespass. The


                                                   9
No. 50113-9-II


Johnsons further assign error to the superior court’s order quieting title in LCMC to an exclusive

easement, free and clear of any claim for use of the property by the Johnsons, and permanently

enjoining the Johnsons or any of their successors and heirs from asserting right, title, or interest to

the exclusive easement. We consider each in turn and hold that the superior court did not err in

dismissing the Johnsons’ quiet title, waste, trespass, and timber trespass claims on summary

judgment, but hold that the superior court erred in granting summary judgment in favor of LCMC

on LCMC’s quiet title claim; erred in permanently enjoining the Johnsons from using the property

except in their capacity as LCMC members; and erred in enjoining the Johnsons, their heirs, and

successors from ever asserting any right, title, or interest in or to the exclusive easement.

A.     LEGAL PRINCIPLES

       As noted above, we review the grant of summary judgment de novo. Verdon v. AIG Life

Ins. Co., 118 Wn. App. 449, 452, 76 P.3d 283 (2003). Thus, we engage in the same inquiry as the

superior court. LaCoursiere v. Camwest Dev., Inc., 181 Wn.2d 734, 740, 339 P.3d 963 (2014).

       Summary judgment is appropriate if the pleadings, affidavits, depositions, and admissions

on file demonstrate the absence of any genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Winston v. State Dep’t of Corr., 130 Wn. App. 61, 63, 121

P.3d 1201 (2005). Like the trial court, we consider all facts submitted and all reasonable inferences

from those facts in the light most favorable to the nonmoving party and will uphold a grant of

summary judgment only if, from all the evidence, reasonable minds could reach but one

conclusion. Id. at 63-64.5


5
  As addressed below, in the unpublished portion of this opinion, we hold that the trial court erred
in striking the portion of Schomaker’s declaration regarding payment of taxes on his property.
Therefore this evidence is still before us on review.


                                                  10
No. 50113-9-II


       The moving party in a summary judgment motion bears the initial burden of showing the

absence of an issue of material fact. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d

182 (1989). If the moving party meets this initial showing, then the inquiry shifts to the opposing

party to show the existence of a genuine issue of material fact. Id. “A genuine issue of material

fact exists where reasonable minds could differ on the facts controlling the outcome of the

litigation.” Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). If the

opposing party fails to make a showing sufficient to establish a genuine issue of material fact, then

summary judgment is appropriate. Young, 112 Wn.2d at 225.

B.     THE JOHNSONS’ QUIET TITLE CLAIM

       The Johnsons appear to argue that the superior court erred in dismissing their quiet title6

claim to the park easement when the court granted LCMC’s summary judgment motion because

there remained a genuine issue of material fact as to the validity of the easement. We disagree.

       “ ‘An easement is a property right separate from ownership that allows the use of another’s

land without compensation.’ ” Hanna v. Margitan, 193 Wn. App. 596, 606, 373 P.3d 300 (2016)

(quoting M.K.K.I., Inc. v. Krueger, 135 Wn. App. 647, 654, 145 P.3d 411 (2006), review denied,

161 Wn.2d 1012 (2007)). This interest in land is a burden to the servient estate. Olson v. Trippel,

77 Wn. App. 545, 554, 893 P.2d 634, review denied, 127 Wn.2d 1013 (1995). Because someone

cannot have an easement in his or her own property, an easement is extinguished when the

dominant and servient estates are commonly owned.7 M.K.K.I., Inc., 135 Wn. App. at 659. “ ‘[A]



6
  The Johnsons title their complaint as a “Complaint to Quiet Title,” but seek ejectment of LCMC
from the park easement area. CP at 315.
7
  In their complaint, the Johnsons referred to this situation as a “grantor easement.” CP at 318.
Even though the Johnsons are correct in asserting that an easement cannot have a common grantor


                                                 11
No. 50113-9-II


successor in interest to the servient estate takes the estate subject to the easements if the successor

had actual, constructive, or implied notice of the easement.’ ” Hanna, 193 Wn. App. at 606

(quoting 810 Props. v. Jump, 141 Wn. App. 688, 699, 170 P.3d 1209 (2007)).

       Termination of an easement is disfavored under the law. Id. When an easement is

expressly granted, “ ‘[t]he extent and duration of the easement is to be determined from the terms

of the grant.’ ” Id. (quoting Zobrist v. Culp, 95 Wn.2d 556, 561, 627 P.2d 1308 (1981)). An

easement is only extinguishable in certain situations, such as when the easement holder releases

the easement by instrument that complies with the statute of frauds, the owner of the servient estate

uses the easement adversely, the easement is abandoned, or the dominant and servient estates

merge. Id. at 606-07.

       Here, the Johnsons alleged that the easement was void because LCC (the grantor) and

LCMC (the grantee) were so intertwined and related that the grant constituted a “grantor

easement.” CP at 318. In moving for summary judgment, LCMC presented evidence that LCMC

was a non-profit corporation created in 1966 for the purpose of managing and maintaining the

common areas of the Lake Cushman Development. LCMC also submitted evidence that LCC was

incorporated as a for-profit Washington corporation in 1965, and that LCC had developed the Lake

Cushman Development and formed LCMC to act as a homeowners’ association for the operation,

maintenance, and repair of common areas of the development.

       This evidence showed that LCC and LCMC were formed as separate corporate entities

with distinctly separate purposes. As a result, LCMC, as the defendant, met its initial burden of


and grantee, no Washington court has referred to such conveyance as a “grantor easement.” E.g.,
M.K.K.I., Inc., 135 Wn. App. at 659; Coast Storage Co. v. Schwartz, 55 Wn.2d 848, 853, 351 P.2d
520 (1960) (holding that “[o]ne cannot have an easement in his own property.”)


                                                  12
No. 50113-9-II


showing that there was no genuine issue as to any material fact as to whether LCC and LCMC

were essentially the same company, which was an essential element to the Johnsons’ claim that

the easement was void. The burden then shifted to the Johnsons to produce evidence sufficient to

establish the existence of an element essential to their claim that the easement was void because it

constituted a “grantor easement.” Young, 112 Wn.2d at 225.

        On appeal, the Johnsons argue that there still remained issues of material fact as to whether

LCC and LCMC were truly separate entities because LCMC’s articles of incorporation provided

that LCMC “ ‘shall at all times hereafter be a joint and mutual association of the above named

incorporators.’ ” Br. of Appellant at 31 (emphasis omitted) (quoting CP at 61). The Johnsons also

argue that a fact finder should have decided whether to disregard the corporate veil here because

a reasonable fact finder could have found that LCC created LCMC with the intent to evade a duty

with respect to taxes and their leaseholders.

        However, these are not the same arguments that the Johnsons raised at summary judgment

below. In their response to LCMC’s motion for summary judgment, the Johnsons argued that

there was evidence that LCC and LCMC were the same entity based on the same individual signing

for both LCC and LCMC in the document granting the easement. At oral argument, the Johnsons

argued that there was evidence LCC and LCMC were not separate because the trustees of the

companies were the same individuals. The Johnsons’ only reference to piercing the corporate veil

on summary judgment was at oral argument when they responded to LCMC’s argument that it

would be inappropriate to pierce the corporate veil here. To this point, the Johnsons’ sole argument

was, “I think the record’s clear, at least at this stage, that there is sufficient evidence to carry the




                                                  13
No. 50113-9-II


claim of the alter ego or the disregarded entity theory forward.” Verbatim Report of Proceedings

(VRP) (Nov. 14, 2016) at 23.

       “On review of an order granting or denying a motion for summary judgment the appellate

court will consider only evidence and issues called to the attention of the trial court.” RAP 9.12.

An argument that was neither pleaded nor argued to the superior court on summary judgment

cannot be raised for the first time on appeal. Sourakli v. Kyriakos, Inc., 144 Wn. App. 501, 509,

182 P.3d 985 (2008), review denied, 165 Wn.2d 1017 (2009). Because the Johnsons never made

an argument to the superior court based on the stated purpose of LCMC in its articles of

incorporation, we do not consider this argument on appeal. Id. Similarly, we do not consider the

Johnsons’ argument on appeal that a fact finder could have found that LCC had created LCMC for

the purpose of evading its tax duties because the Johnsons never raised this argument below.8 Id.

       As to the arguments that the Johnsons did raise on summary judgment, the Johnsons fail to

provide citation to any authority supporting their argument that two separate corporations are

considered the same entity if a single individual signs for both companies. The Johnsons also fail

to provide citation to legal authority supporting their argument that commonality of board

members between two corporations renders those two corporations essentially the same entity.

“Where no authorities are cited in support of a proposition, the court is not required to search out

authorities, but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle



8
  Similarly, on appeal, the Johnsons’ raise an argument that the easement was not validly created
by short plat and that LCC never obtained written permission from the City of Tacoma to create
the easement. However, the Johnsons never raised either of these arguments in its response to
LCMC’s motion for summary judgment. The Johnsons also failed to raise this issue at oral
argument. Therefore, we do not consider these arguments on appeal. Sourakli, 144 Wn. App. at
509.


                                                14
No. 50113-9-II


Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). Therefore, we hold that the Johnsons

failed to make a showing sufficient to establish that LCC and LCMC were the same entity, which

was an essential element to their claim that the easement here constituted a “grantor easement.”

        Because the Johnsons’ quiet title claim was premised on their assertion that the easement

was void as a “grantor easement” and none of the recognized circumstances under which an

easement can be terminated was present, summary judgment was appropriate. We affirm the

superior court’s grant of summary judgment in favor of LCMC in dismissing the Johnsons’ quiet

title claim.

C.      THE JOHNSONS’ TRESPASS, TIMBER TRESPASS, AND WASTE CLAIMS

        The Johnsons also assign error to the superior court’s dismissal of their trespass, timber

trespass, and waste claims. The Johnsons’ sole argument is that the superior court erred in failing

to make findings of fact or conclusions of law with respect to dismissal of these claims. According

to the Johnsons, the superior court “abused its discretion in summarily dismissing these claims

with no basis for such dismissal.” Br. of Appellant at 45.

        As an initial matter, review of an order granting summary judgment is de novo, not for an

abuse of discretion. Verdon, 118 Wn. App. at 452. Also, as explained above, the superior court’s

findings of facts on a summary judgment order are superfluous and thus are not a basis to assign

error on appeal. Nelson, 198 Wn. App. at 109. Because the Johnsons fail to provide any other

argument, or cite to legal authority or relevant portions of the record, in challenging the superior

court’s dismissal of these claims, we do not consider this assignment of error. RAP 10.3(a)(4),

(6).




                                                15
No. 50113-9-II


D.       LCMC’S QUIET TITLE CLAIM

         The Johnsons argue that the superior court erred in (1) granting LCMC’s counterclaim to

quiet title on summary judgment, (2) permanently enjoining the Johnsons from using the easement

except in their capacity as LCMC members, and (3) permanently enjoining the Johnsons, their

successors, and heirs from ever asserting any right, title, or interest in the exclusive easement. We

agree.

         In response to the Johnsons’ complaint, LCMC brought a counterclaim to quiet title,

arguing that LCMC held an “exclusive easement” to the park. CP at 313-14. In its motion for

summary judgment, LCMC argued that there was no genuine issue as to any material fact because

the “validity of the deed and plat dedication and the scope of the easement are decided by this

court as a matter of law. The deed and plat dedication are clear. The exclusive nature of the

easement is clear.” CP at 187. LCMC also argued at summary judgment that allowing the

Johnsons “use of the park property for any purpose other than using the park as a member

community would substantially interfere with this easement.” CP at 183. LCMC solely relied on

the language in the easement document stating that LCC “hereby declare[s] an easement for the

exclusive use of the Lake Cushman Maintenance Co., its successors and assigns, for park and road

purposes.” CP at 151. According to LCMC, the language “exclusive use” created an unambiguous

exclusive easement for LCMC, and therefore, the Johnsons had “no right to use of any of the

easement area except as members of LCMC and subject to LCMC rules and regulations for

member use.” CP at 182-83.

         In determining the original parties’ intent to an easement, we consider the instrument as a

whole. Rainier View Court Homeowners Ass’n v. Zenker, 157 Wn. App. 710, 720, 238 P.3d 1217



                                                 16
No. 50113-9-II


(2010), review denied, 170 Wn.2d 1030 (2011). If the plain language of the instrument is

unambiguous, then we will not consider extrinsic evidence of intent. Id. If an ambiguity exists in

the instrument, then we may consider extrinsic evidence of the parties’ intent, including the

circumstances of the property when the easement was conveyed, and the practical interpretation

given the parties’ prior conduct. Id. A written instrument is ambiguous if “ ‘its terms are uncertain

or capable of being understood as having more than one meaning.’ ” Id. (quoting Murray v. W.

Pac. Ins. Co., 2 Wn. App. 985, 989, 472 P.2d 611 (1970)).

       Case law addressing exclusive easements in Washington is limited. Nonetheless, the

limited case law shows that exclusive easements are recognized under Washington law. See

Hayward v. Mason, 54 Wash. 649, 652, 104 P. 139 (1909) (holding that the circumstances

surrounding the grant of an easement to use a waterway did not show that the easement was

intended to be an exclusive easement); Hoffman v. Skewis, 35 Wn. App. 673, 675-76, 668 P.2d

1311 (1983) (rejecting the grantee’s claim that the grantor conveyed an exclusive easement by

including the term “private” in the granting instrument), review denied, 101 Wn.2d 1001 (1984);

Butler v. Craft Eng’g. Constr. Co., 67 Wn. App. 684, 690, 843 P.2d 1071 (1992) (“There is no

language in the easement indicating that it was to be an exclusive easement or which would

affirmatively restrict the rights of the owners and purchasers of the undivided fee interest.”).

       No published Washington case has addressed whether the use of the term “exclusive” in a

granting instrument unambiguously conveys an exclusive easement. However, states that have

addressed this issue have held that the mere use of the word “exclusive” in a conveying instrument

does not, in and of itself, create an exclusive easement. See Latham v. Garner, 105 Idaho 854,




                                                 17
No. 50113-9-II


857, 673 P.2d 1048 (1983); Apitz v. Hopkins, 863 N.W.2d 437, 440 (Minn. Ct. App. 2015)

(adopting Latham’s reasoning).

       In Latham, the Idaho Supreme Court held that the use of the word “exclusive” did not

unambiguously create an easement precluding the use of the servient estate. 105 Idaho at 857.

The Latham court held that even with the term “exclusive,” the instrument was ambiguous because

it could be interpreted as (1) the grant of an easement to the grantee to the exclusion of all others,

except the grantor; or (2) the grant of an easement right of way excluding all others, including the

grantor; or, (3) as the grant of a fee simple estate to the grantee. Id. Thus, the instrument was

ambiguous because it was still reasonably subject to conflicting interpretations. Id.

       We adopt the Latham court’s reasoning and hold that that the mere inclusion of the phrase

“for the exclusive use” in the conveying instrument did not unambiguously provide LCMC an

exclusive easement in the park. The inclusion of the phrase “for the exclusive use of the Lake

Cushman Maintenance Co.” could be interpreted as (1) the grant of an easement to LCMC to the

exclusion of all others, except the grantor; or (2) the grant of an easement right of way excluding

all others, including the grantor; or (3) the grant of a fee simple estate to LCMC. Because this

term is susceptible to conflicting interpretations, it is ambiguous.9

       Because an ambiguity exists in the conveying instrument, we consider extrinsic evidence

of the parties’ intent, including the circumstances of the property when the easement was



9
 LCMC argues that providing evidence of intent would be problematic because the easement was
created more than 34 years ago, and has outlasted the lifetimes of both agents of the grantor and
grantee. Therefore, evidence concerning the circumstances of the conveyance would be both
“unreliable and unobtainable.” Br. of Resp’t at 19. LCMC’s inability to provide evidence
establishing intent does not sway this court in interpreting the deed as ambiguous.



                                                 18
No. 50113-9-II


conveyed, and the practical interpretation given the parties’ prior conduct. Rainier View Court

Homeowners, 157 Wn. App. at 720. Here, LCMC provided no extrinsic evidence of the parties’

intent, but instead solely relied on the use of the term “exclusive” in the conveying document. CP

at 182-83. Therefore, as the moving party, LCMC failed to meet its burden showing that there

was no genuine issue as to any material fact that LCC intended to convey an exclusive easement

to LCMC to the exclusion of the Johnsons as the possessor of the servient estate, and LCMC was

not entitled to judgment quieting title as a matter of law.

       We reverse the superior court’s summary judgment order granting LCMC’s quiet title

claim. Because LCMC has not established that it possesses an exclusive easement in the park to

the exclusion of the Johnsons as the possessor of the servient estate, we also reverse the superior

court’s injunction prohibiting the Johnsons from using their property as the servient estate owners

and the injunction prohibiting the Johnsons, their heirs, agents, and assigns from asserting title or

interest in the easement.

       Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

       A majority of the panel having determined that only the foregoing portion of this opinion

will be published in the Washington Appellate Reports and that the remainder shall be filed for

public record pursuant to RCW 2.06.040, it is so ordered.




                                                 19
No. 50113-9-II


                                  UNPUBLISHED TEXT FOLLOWS

                                              FACTS

       In response to LCMC’s motion for summary judgment, the Johnsons submitted several

declarations, including the declarations of Matthew Johnson and Mark Schomaker.                  In his

declaration, Matthew asserted:

       A portion of our property that LCMC has been using for the road and viewpoint is
       clearly not being used only for residential purposes, which is contrary to the original
       covenants. Over the past few years, LCMC has turned the park into a business.
       They are now selling passes that members can purchase that allow non-members
       access to our property (which includes the easement). There are a number of rentals
       that take advantage of this for the clients that purchase accommodations. In 2015
       alone, LCMC issued 703 annual passes, 155 3-day passes, 359 1-day passes, 142
       3-day boat launch passes, 221 1-day boat launch passes. The board has also given
       passes to employees of Tacoma Power, the fire department and who knows how
       many other non-members. This has increased traffic and use well beyond that
       which was contemplated in the easement, and has gotten to a point there [sic]
       LCMC cannot control the behavior of the users, thus resulting in a loss of
       enjoyment of, and damage to, our property.

CP at 48.


       The Johnsons also filed a declaration of Mark Schomaker, who had leased a lot at Lake

Cushman for approximately 24 years. In his declaration, Schomaker asserted:

       Additionally, if LCMC really thought the property was a park wouldn’t they
       comply with their own Articles of Incorporation? In Dave Curley’s Declaration he
       copied the Articles of Incorporation, in which paragraph 10 states that LCMC will
       pay all taxes and assessments for parks and public areas. I do not believe they have
       paid any taxes on our lot in the past and I know they haven’t paid taxes on it since
       our purchase. Paragraph 19 also states that they are not to operate the parks at a
       profit. They currently charge for passes to non-members park use (allowing non-
       members to use the easement area is also an expansion of the easement).

CP at 123-24.




                                                 20
No. 50113-9-II


       LCMC filed a motion to strike portions of Matthew and Schomaker’s declarations quoted

above,10 arguing that Matthew’s declaration was speculative and made without personal

knowledge as required by CR 56(e)11 and that Schomaker’s declaration was irrelevant. The

superior court granted portions of LCMC’s motion to strike. The superior court struck all but the

first three sentences of the paragraph of Matthew’s declaration. With regard to Schomaker’s

declaration, the superior court struck the entire paragraph as irrelevant, including Schomaker’s

statement, “I do not believe [LCMC] ha[s] paid any taxes on our lot in the past and I know they

haven’t paid taxes on it since our purchase.” CP at 123-24.

                                            ANALYSIS

       The Johnsons assign error to the superior court’s order striking portions of Matthew and

Schomaker’s declarations. We hold that the superior court did not err in striking the portion of

Matthew’s declaration. However, we hold that the superior court did err in striking the portion of

Schomaker’s declaration regarding his knowledge of tax payments on the property. Thus, we

consider the stricken portion of Schomaker’s declaration regarding taxes in reviewing the

summary judgment order.




10
  LCMC also moved to strike other portions of the Johnson and Schomaker declarations, as well
as other submitted declarations, which the superior court granted. However, the Johnsons only
assign error to the portion of the superior court’s order striking the two paragraphs of Matthew and
Schomaker’s declarations quoted above.
11
  Under CR 56(e), affidavits supporting and opposing summary judgment “shall be made on
personal knowledge, shall set forth facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.”


                                                21
No. 50113-9-II


A.     LEGAL PRINCIPLES

       We review all trial court rulings made in conjunction with a summary judgment motion de

novo. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); Simmons v. City of

Othello, 199 Wn. App. 384, 390-91, 399 P.3d 546 (2017) (reviewing the trial court’s evidentiary

rulings on the defendant’s motion to strike portions of affidavits plaintiff submitted de novo).

Applying de novo review “is consistent with the requirement that the appellate court conduct the

same inquiry as the trial court.” Folsom, 135 Wn.2d at 663.

       An affidavit supporting or opposing a summary judgment motion must be based on

personal knowledge, set forth such facts as would be admissible in evidence, and “show

affirmatively that the affiant is competent to testify to the matters stated therein.” CR 56(e). This

requires a party to set forth specific facts to meet his or her burden at summary judgment. Suarez

v. Newquist, 70 Wn. App. 827, 832, 855 P.2d 1200 (1993). “[S]peculation, argumentative

assertions, opinions and conclusory statements will not defeat the [summary judgment] motion.”

Id.

B.     MATTHEW’S DECLARATION

       The Johnsons argue that the superior court erred in striking the statements in Matthew’s

declaration about the increasing number of park passes LCMC issued in recent years and that

LCMC could not control its users’ behavior.12 We disagree.




12
   The superior court struck other portions of Matthew’s declaration, but the Johnsons only
challenge the portion of the order striking Matthew’s references to the park passes and statements
that LCMC could not control users’ behavior.



                                                 22
No. 50113-9-II


          “A witness may not testify to a matter unless evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter.” ER 602. And courts will not

consider legal conclusions asserted in a summary judgment motion. Simmons, 199 Wn. App. at

392.

          Here, Matthew stated that the portion of his property that LCMC had been using for road

and viewpoint purposes was “clearly not being used only for residential purposes, which is

contrary to the original covenants.”13 CP at 48. Matthew then stated how many passes the LCMC

board had issued over the past few years and claimed that many of these passes were given to non-

LCMC members. Finally, Matthew asserted that “LCMC cannot control the behavior of the users,

thus resulting in a loss of enjoyment of, and damage to, our property.” CP at 48. In making these

statements, Matthew provided no foundation as to his personal knowledge of the number of passes

LCMC had issued nor did he provide any foundation as to his knowledge of who was using the

passes.

          The Johnsons argue that these statements were based on “the personal knowledge Mr.

Johnson has as an LCMC member, further supported by an exhibit LCMC submitted in its moving

papers.” Br. of Appellant at 22. However, Matthew never stated in his declaration that he was an

LCMC member, nor did he state that as a member of LCMC he was aware of the number of annual

passes the board distributed to members and nonmembers. In fact, in the paragraphs proceeding

these statements, Matthew failed to even establish that the property he referred to was developed

by LCC, leased by LCC, or managed by LCMC. His only references to the location of his

leasehold interest was, “We wanted property that would allow our kids, and someday grandkids,


13
     The superior court did not strike this statement from Matthew’s declaration.


                                                  23
No. 50113-9-II


to experience the lake and wooded area around Cushman. We fell in love the second we looked

onto the property in which we currently have a leasehold interest.” CP at 47.

       Therefore, Matthew failed to provide adequate foundation in his declaration to establish

that the property in which he held a leasehold interest was leased by LCC or managed by LCMC.

Even had Matthew established these facts, he provided no foundation that he was a member of

LCMC or that the members of LCMC had personal knowledge of the specific number of park

passes the LCMC board distributed to members and nonmembers each year. Therefore, the

superior court did not err in striking the challenged portion of Matthew’s affidavit.14

       The superior court also properly found that Matthew’s statement that LCMC could not

control the behavior of its users was outside of his personal knowledge, as required by CR 56(e).

The Johnsons argue that these statements “reflect[ed] personal knowledge based on Mr. Johnson’s

experience as an owner and user of the Property.” Br. of Appellant at 22. However, the Johnsons

failed to provide any foundation for how, as a user of the property, Matthew had personal

knowledge as to what was within LCMC’s control with regard to park users. Thus, we hold that

the superior court did not err in striking this portion of Matthew’s affidavit.

C.     SCHOMAKER’S DECLARATION

       Again, “[a] witness may not testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the matter.” ER 602. Further,



14
  Evidence of the number of annual park passes issued by the LCMC board was before the superior
court through the declaration of David Curley, which was submitted by LCMC, along with
documentation detailing the number of annual passes the LCMC board distributed. Therefore,
even though we hold that the superior court did not err in striking Matthew’s references to the
annual park passes, this information remains in evidence before this court through Curley’s
declaration and accompanying documents.


                                                 24
No. 50113-9-II


evidence which is not relevant is inadmissible. ER 402. Relevant evidence “means evidence

having any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” ER 401.

       Here, the superior court ruled that Schomaker’s statements were speculation, not based on

personal knowledge, and specifically stated to be his personal beliefs. As in Matthew’s affidavit,

Schomaker failed to provide any foundation as to his knowledge of the annual park passes LCMC

issued to non-members.      Further, in the first two sentences of the challenged statements,

Schomaker fails to offer testimony at all, but instead poses a question and then makes an argument

based on another witness’s testimony.

       Nonetheless, Schomaker does have personal knowledge as to whether LCMC paid taxes

on his property from the time he acquired his leasehold interest in the property. This information

could have a tendency to make a fact regarding the scope and historical use of the easement more

or less probable than it would be without this evidence. Therefore, Schomaker’s statement that

LCMC had not, to his knowledge, paid taxes from the time Schomaker acquired his leasehold

interest was relevant. See ER 401. Therefore, we hold that the superior court erred in striking this

one sentence from the paragraph at issue in Schomaker’s declaration. The superior court properly

struck the remainder of the paragraph.

                                           CONCLUSION

       The superior court did not err in dismissing the Johnsons’ quiet title, trespass, waste, timber

trespass, and injunction claims. The superior court also did not err in striking portions of

Matthew’s and Schomaker’s affidavits.




                                                 25
No. 50113-9-II


       However, the superior court erred in quieting title in LCMC to an exclusive easement free

and clear of any claim for use by the Johnsons because LCMC failed to show that there was no

genuine issue of material fact that their easement was intended to be an exclusive easement.

Because the superior court erred in quieting title in LCMC to an exclusive easement, the superior

court also erred in enjoining the Johnsons, their heirs, executors, agents, and assigns from asserting

any right, title, or interest in or to the exclusive easement quieted in LCMC. The superior court

further erred in striking the portion of Schomaker’s affidavit related to payment of taxes on the

property. Accordingly, we affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.



                                                      Lee, A.C.J.
 We concur:



Worswick, J.




Sutton, J.




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