IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

SONJA 0. BEAL & ROBERT E. BEAL, wife and husband, and their heirs, 

## successors, and assigns, Respondents/Cross-Appellants,

v. 

### JAMES C. LOPEZ and TESSA B. FRANCIS, husband and wife, and their heirs, successors, and assigns; R CHARD D. CAMPBELL and REBECCA LEE MARCY, husband and Wife; and ALLOTHER PERSONS OR PARTIES UNKNOWN CLAIMING ANY R GHT, TITLE ESTATE, LIEN OR INTEREST IN THE REAL ESTATE DESCRIBED IN THE COMPLAINT, 

### Appellants/Cross-Respondents. 

### Spearman, C.J. — In a dispute between the grantor and grantee of 

## residential property, thetrial courtgranted summaryjudgmentforthe grantee, finding as a matter oflaw that thegrantor hadbreached the covenant ofseisin, the covenant of quietpossession, and the covenant to defend. Attrial, the court awarded the grantee damages for lost propertyand attorney fees incurred 

### defending title. The grantor appeals thetrial court's decision granting summary 

### judgmentto thegrantee onthebreach ofwarranty issue. Both parties appeal the awards ofdamages and attorneyfees. Finding noerror, we affirm. No. 72919-5-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: October 12. 2015 en O o fN-1


No. 72919-5-1/2
FACTS Richard D. Campbell and his wife, Rebecca Lee Marcy (collectively 

### "Campbell"), bought a 1.42 acre residential property on Vashon Island at a trustee sale in May 2011. In November 2011, Campbell sold the property to Sonja and Robert Beal ("Beal") by statutory warranty deed. In March 2013, Beal had the property surveyed and staked the boundaries in preparation for building

a fence. Beal's neighbors to the south, James C. Lopez and Tessa B. Francis ("Lopez"), objected and told Beal to stay offthe land. Lopez asserted that an existing fence, located about 50 feet north of Beal's survey markers, had been erected in 1998 and had been treated as the property boundary since that time. Lopez retained an attorney who informed Beal that Lopez intended to take title to the property by adverse possession. Lopez's counsel sent Beal a statement from Lopez's predecessor in interest confirming that he had erected the fence in 1998 and had continuously used and maintained the disputed land until selling it to 

# L^pezin 2007. Beal retained an attorney who tendered defense to Campbell on March 

### 27, 2013, pursuant to the covenant to defend included in a statutory warranty d«>ed under RCW 64.04.030. Beal's attorney informed Campbell that a potential defense to adverse possession would soon be barred by the statute of 

### limitations, and urged Campbell to retain counsel in a timely manner. Campbell stated that he accepted the tender ofdefense. He communicated with Beal and 

### Beal's attorney, sought information about Lopez's claim and possible defenses,No. 72919-5-1/3 and proposed possible courses of action. Campbell also stated that he did not 

### agree to pay damages to Beal for lost property and that he did not agree to pay for Beal's attorney. Campbell did not retain an attorney and intended to act pro
se defending Beal's title. Campbell urged Beal to settle and stated that he would only defend title ifLopez instituted legal proceedings, but not ifBeal filed to quiet
tit In September 2013, Beal filed a complaint against Lopez to quiet title and 

### adainst Campbell for breach of warranty. Lopez counterclaimed for adverse possession. Campbell, acting pro se, filed a motion for summaryjudgment asking the court to absolve him of any obligation to defend title or pay legal costs. The trial court denied this motion. Lopez filed a motion for summaryjudgment on the 

### aqverse possession claim, which the court alsodenied.1 Beal and Campbell entered into a settlement agreement with Lopez and 

### ah agreedjudgmentquieting titlein Lopez was entered on March 25, 2014. Campbell and Beal filed cross motions for summaryjudgment on the breach of warranty claim. The court granted partial summaryjudgment to Beal, finding as a matter of law that Campbell had breached the covenant of seisin, the covenant of 

## qijjietpossession, and the covenantto defend. The remaining issue at trial was damages. Beal offered the testimony of 

### arli appraiserwho valued the lost property at $2.02 per square foot for a total of

1 Campbell andBeal both filed briefs in opposition toLopez's motion for summary 

### judgment. Campbell, acting pro se, asserted thatLopez had notmethis burden ofproof. Beal argued that summaryjudgmentwas premature and requested more time for discovery.No. 72919-5-1/4 

### $18,446.52. Campbell testified that based on his experience as a real estate broker and investor, the value of the land was about $3,000 total or $0.33 per square foot. The court found the appraiser to be more credible and more 

### persuasive than Campbell, and awarded $18,446.52 indamages forthe lost property. The court also found that all ofBeal's attorney fees fromthe time Beal 

### tendered defense to Campbell on March 27, 2013, until the agreedjudgmentwas entered on March 25, 2014, were incurred defending title and constituted 

### damages for Campbell's breach ofthe warranty to defend. The court awarded Beal $21,310 in attorneys' fees. Campbell appeals the grant ofsummaryjudgment to Beal on the breach ofwarranty issue. Campbell and Beal both appeal the awards ofdamages and 

## attorneyfees.
DISCUSSION 

### Breach of Warranty2 This court reviews a summaryjudgment order de novo. Camicia v. 

### Hbward S. Wright Constr. Co.. 179 Wn.2d 684, 693, 317 P.3d 987 (2014). Summaryjudgment is appropriate ifthe evidence in the record demonstrates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Becker v. Washington State Univ., 165 Wn. App. 235, 245-46, 266 P.3d 893, 899 (2011). The nonmoving party may not rely on speculation, but must "set forth specific facts that sufficiently rebut the

2RCW 64.04.030 provides that every conveyance by statutory warranty deed includes thi covenants of seisin, quiet possession and the duty to defend title.No. 72919-5-1/5 

### moving party's contentions and disclose that a genuine issue as to a material fact exists." Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1,13, 721 P.2d 

### 1 (1986) (citing Dwinell's Cent. Neon v. Cosmopolitan Chinook Hotel. 21 Wn. 

### App. 929, 587 P.2d 191 (1978)). We consider allfacts in the light most favorable to the nonmoving party and review all questions of lawde novo. Erickson v. Chase, 156 Wn. App. 151, 156,231 P.3d 1261 (2010). 

### The covenant of seisin guarantees that the grantor has the possession, 

### the right ofpossession, and the complete legal title to the property. Double L Properties, Inc. v. Crandall. 51 Wn. App. 149, 153, 751 P.2d 1208 (1988). A 

### grantor "breaches the covenant of seisin if, at the time ofsale, an adverse claimant is actually inpossession of all or a portion ofthe land conveyed, whether his claim is rightful or wrongful." ]d. at 156. 

### Campbell asserts that the trial court erred in finding that he had breached the covenant of seisin because Beal failed to provide sufficient evidence that 

### Lopez was in possession of the disputed portion at the time he bought the 

### property. Beal submitted declarations from Lopez and Welch stating that they treated the existing fence as the property line and that Lopez was inpossession of the disputed portion of land at the time Campbell conveyed the property. 

### Campbell did not submit evidence to rebut Beal's affidavits. All of the evidence before the trial court supported Beal's motion. The trial court did not err in 

### granting summary judgment to Beal on the issue of breach of seisin. Campbell nextargues that the trial court erred in its analysis of the 

## covenantofquietpossession. The covenantofquietpossession guarantees thatNo. 72919-5-1/6 the grantee "shall not, by force of paramount title, be evicted from the land or 

### deprived of its possession." Foley v. Smith, 14 Wn. App. 285, 290-91, 539 P.2d 874 (1975) (citing 20 Am.Jur.2d Covenants, Conditions, &Restrictions § 50 (1965)). Paramount title may be established by evidence ofadverse possession for the statutory period of time. Hovt v. Rothe, 95 Wash. 369, 373, 163 P. 925 

### (1917). Eviction may be actual or constructive. ]cL Aconstructive eviction occurs when a third party is in possession ofthe property atthe time ofconveyance and refuses to quit upon demand. Id 

### Campbell argues that summaryjudgment was improper because Beal was not evicted from the land, Lopez did not have paramount title, and Campbell did 

### not have the opportunity to defend. His arguments are without merit. The 

### undisputed evidence before the courtestablished that Lopez was in possession 

### of the disputed land, refused to quit, and had adversely possessed the land for the statutory period oftime. 

### Campbell relies on Hovtto assert that Lopez's demand that Beal stay off 

### the disputed land did notwork a constructive eviction. His reliance is misplaced. The Hovt court held that possession by an adverse possessor operates as a constructive eviction. Hovt, 95 Wash, at 373-374. Campbell's argument that 

### Lopez did not have paramounttitle issimilarly unfounded. It iswell settled that adverse possession for the statutoryperiod of timeestablishes paramounttitle.

6No. 72919-5-1/7 

### ld^ at 373.3 Campbell also relies on Mellorv. Chamberlin. 100Wn.2d 643, 673

>.2d 610 (1983) to argue that summaryjudgmentfor breach ofthe covenant of 

### quiet possession was improper because he did not have a fair opportunity to defend. This argument, too, is unavailing because Melloraddresses, not the covenant of quiet possession, but the covenant to defend. ]d. at 648-649. The trial court did not err in granting summaryjudgment to Beal on the issue of 

## brfeach ofthe covenantofquietpossession. Campbell next argues that the trial court erred in granting summary 

### judgmentto Beal on the issue of the covenant to defend. The covenant to defend guarantees that "no lawful, outstanding claims against the property exist." Erickson, 156 Wn. App. at 158 (citing Masto v. Kumakichi Corp., 90 Wn. App. 157, 164, 951 P.2d 817 (2010)). Itfurther guarantees that the grantor, upon tender of defense, willprovide a good faith defense to title. Edmonson v. Popchoi, 172 Wn.2d 272, 283, 256 P.3d 1223 (2011). To establish breach ofthe warranty to defend, a grantee must establish (1) that a third party has asserted a 

## superiorrighttothe property, (2) thatthe grantee has properlytendered defense to the grantor, and (3) that the grantor has refused the tender. Erickson, 156 Wn. 

### Abp. at 158-159.

3We also reject Campbell's argument that the denial of Lopez's motion for summary judgment demonstrates that Lopez did not have paramounttitle. The denial of a motion for summaryjudgment does not determine the merits of a claim. See, e.g., Rodin v. O'Beirn, 3 Wn. App. 327, 332, 474 P.2d 903 (1970) (noting that while the denial of a motion for summary jdgment is usually grounded upon the presence of a triable issue of fact, it may rest on other grounds); Johnson v. Rothstein. 52 Wn. App. 303, 305-06, 759 P.2d 471 (1988) (stating that the denial of summaryjudgment is not a decision that determines the action).

### Nb. 72919-5-1/8 Campbell disputes each ofthese elements and argues that Lopez did not 

## h^ve superiortitle, Beal did notproperlytenderdefense, and Campbell did not refuse the tender. Hisarguments are without merit. Beal established through evidence that Lopez had adversely possessed the property for the statutory period of time, that Beal repeatedly tendered defense to Campbell, and that, although Campbell stated that he accepted tender, he placed numerous conditions on his acceptance and did not retain an attorney to defend Beal's title. 

## Campbellfailed to refute Beal's evidence.4We hold thatthetrial courtdid noterr in finding as a matter of law that Campbell breached the covenant to defend. Damages Both parties appeal the award ofdamages. The reasonableness ofan avvard for damages is a question offact, which this court reviews for abuse of discretion. Harmony at Madrona Park Owners Ass'n v. Madison Harmony Dev., Inc., 143 Wn. App. 345, 357-58, 177 P.3d 755 (2008). An appellate court generally will "not disturb an award of damages made by the fact finder unless it

IS outside the range of substantial evidence in the record..
. ."Harmony at Madrona Park Owners Ass'n v. Madison Harmony Dev.. Inc., 160 Wn. App. 728, 737, 253 P.3d 101 (2011) (guoting Mason v. Mortgage Am., Inc., 114Wn. 2d 842, 850, 792 P.2d 142 (1990)). A trial court "necessarily abuses its discretion if



### 4Campbell argues thatBeal's tenderofdefense wasineffective becauseitwasmade bdfore litigation commenced. He also argues that he acted pro se in defending Beal's title and was not obligated to retain an attorney. He provides no legal support for these arguments and we accordingly reject them.

8No. 72919-5-1/9 

### it awards damages based upon an improper method ofmeasuring damages." Farmer v. Farmer. 172 Wn.2d 616, 625, 259 P.3d 256 (2011). Damages for lost property represent the difference between the value of 

### thb property as represented and the value ofthe property actually conveyed. Johnson v. Brado, 56 Wn. App. 163, 783 P.2d 92 (1989). Campbell argues that the trial court relied on an improper method to calculate damages, and thus 

## necessarily abused its discretion. His argumentis withoutmerit. At trial, Beal presented the testimony of a licensed real estate appraiser 

### with 18 years' experience in the Vashon Island real estate market. In valuing the property, the appraiser performed a visual inspection, researched comparable properties, and assessed the value ofthe land without improvements to arrive at 'site value," or value ofthe land apart from any structures on it. Verbatim Report of Proceedings (VRP) at 39. She used the site value to determine the land value per square foot and, thus, the value ofthe lost property. The appraiser valued the lost property at $18,446.52. Campbell testified that in his experience
as. an investor and licensed real estate broker, the sale price ofthe property would have decreased by about $3,000 if ithad been sold without the portion of the land claimed by Lopez. The trial court found the appraiser more credible and
more persuasive than Campbell and awarded $18,446.52 in lost property 

## damages. On appeal, Campbell asserts that lost property value can only be 

### determined in reference to theexisting improvements on the lot, not by assessing the value of an improved lot as though itwere vacant. Although Campbell cites toNo. 72919-5-1/10
numerous cases, these affirm only that damages for lost property represent the difference between the market value ofthe property as represented and the 

## rrjarketvalue ofthe propertyactuallyconveyed. See, e.g., Johnson, 56Wn. App. at 166; Friebe v. Supancheck. 98 Wn. App. 260, 269, 992 P.2d 1014 (1999); 

### Hburdingerv. Till. 1Wn.2d 335, 339, 96P.2d 262 (1939). Campbell does not provide support for his assertion that the appraiser's method ofdetermining 

### market value was improper.5 We hold that the trial court did not rely on an 

## injipropermethod to calculatedamages. Beal also challenges the amount ofthe lost property award. Beal contends that the trial court erred when it held that Beal was entitled to interest on the lost 

## prjopertyonlyfrom the date ofthe oral ruling when the lostpropertydamages became liquidated.6 Beal argues that Edmonson establishes that grantees should be awarded interest on the value of the lost property from the time of conveyance. Edmonson does not support this argument because the award of lost property damages was not at issue inthat case. Id. at 277. We reject Beal's argument as unfounded.

5In discussing appropriate methods tocalculate lost property damages, theFriebe court cited to Sahalee Country Club, Inc. v. State Bd. of Tax Appeals. Friebe, 98 Wn. App. at 269 (citingSahalee Country Club. Inc. v. State Bd. of Tax Appeals. 108 Wn.2d 26, 735 P.2d 1320 (H387)). InSahalee, the Court specifically recognized three appraisal methods approved by the American Appraisal Institute. Sahalee, 108 Wn.2d at 33. One ofthese, the cost method, involves estimating the value ofthe land as ifvacant. J<1 

### 6Prejudgmentinterestisallowed as a matterofright when theclaim isliquidated. 

### Colonial Imports v. Carlton Northwest. Inc.. 83Wn. App. 229, 245, 921 P.2d 575 (1996). Aclaim is liquidated when the amount ofdamages are knownwith exactness. Prier v. Refrigeration Engineering Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968). Beal does not dispute the trial court's

ru ing that the damages became liquidated on the date of the oral ruling.

10

### Nb. 72919-5-1/11 Both parties dispute the award ofattorney fees forbreach of the covenant 

## tcj defend. Agrantee may recoverasdamages those attorneyfees incurred defending title that were proximately caused by the grantor's breach of the covenant to defend. Edmonson v. Popchoi. 155 Wn. App. 376, 384, 228 P.3d 780 (2010) affd, 172 Wn.2d 272, 256 P.3d 1223 (2011). See also Mastro. 90 

### Wn. App. at 166-67 (analyzing whether breach ofthe covenant to defend was the 

### proximate cause of attorney fees). Attorneyfees incurred in a suit brought by the grantee against the grantor for breach ofwarranty are not recoverable. Mellor. 

### 100Wn.2d at 649-650. Where attorney fees are recoverable for onlysome part of a party's claims, the trial court must generally segregate the recoverable from the nonrecoverable fees. Loeffelholz v. Citizens for Leaders with Ethics and 

### Accountability Now (CLEAN.). 119 Wn. App. 665, 691, 82 P.3d 1199 (2004). The reasonableness ofan award ofattorney fees is reviewed for abuse of discretion, jd. at 690. 

### Campbell argues that the trial court erred because it failed to segregate 

### \tie attorney fees Beal incurred in his suit against Campbell from those he incurred in his suit against Lopez. We reject this argument. The trial court examined the attorney fees incurred by Beal and heard testimony from Beal, Beal's attorney, and Campbell concerning the fees. The court found that Campbell's conditional and ineffective responses to the tender of defense forced Beal to join his complaint against Campbell to his complaint against Lopez. The trial court thus found that all of Beal's attorney fees until the settlement were incurred defending title, and that Campbell's breach ofthe covenant to defend

11No. 72919-5-1/12
was the proximate cause ofthose fees. The evidence supports the trial court's decision. Beal also appeals the award of attorney fees. Beal argues that the trial 

### cburt erred in awarding him onlythose attorney fees incurred until the settlement with Lopez. Beal contends that he should have received, in addition, the attorney fees he incurred after the settlement with Lopez until the grant of summary 

### judgment against Campbell either as damages forCampbell's breach of the 

## covenantto defend orin equity. Beal's arguments are unavailing. Agrantee may recover from a grantor 

### who has breached the covenantto defend onlythose attorney fees incurred defending title. Edmonson, 155 Wn. App. at 384; Mellor. 100Wn.2d at 649-650. Alter settling the adverse possession claim, Beal's further attorney fees were not incurred in defense oftitle.7 The additional fees were thus not recoverable as 

## damagesforCampbell's breach ofthe covenanttodefend. Beal's argument in equity also fails. Equitable indemnity allows recovery of 

## expenses incurred byan innocentpartydefending againstlitigation caused by the wrongful act of another. Dauphin v. Smith, 42Wn. App. 491, 494-95, 713 P.2d 116 (1986). It does notprovide a means to recover attorney fees incurred in 

### a separate suit against the wrongdoer. Brock v. Tarrant, 57Wn. App. 562, 572,

7 Beal argues that the"abnormal nature ofthis case" andCampbell's "extreme bad faith" 

### justifyfinding thatBeal's additional attorneyfees were incurred in defense oftitleandwere proximately caused by Campbell's breach. BriefofRespondent at39-40. Beal offers nolegal supportfor this argument. Beal's argument alsofails because thetrial courtexpressly found that Campbell did not act in bad faith.

12No. 72919-5-1/13 

### 789 P.2d 112 (1990).8 We find no error and affirm the trial court's award for 

## damages. Beal also requests attorney fees on appeal under RAP 18.1 and 18.9(a), 

## asserting that Campbell filed afrivolous appeal. We decline to award fees on appeal.

<j&\t~-. <r-^ 

# c^

WE CONCUR: 

# CotA.

8Beal argues thatBrock standsfor theproposition that aninnocent party may recover 

### fe^s incurred in asuitagainst awrongdoerwhen the innocentparty is forced to litigatethe same issues that were addressed in priorlitigation. This is incorrect. In Brock, the original plaintiff assigned his claim to the wrongdoer. Brock, 57 Wn. App. at 572. The innocent party was forced to defend against the wrongdoer the same issues that he would have had to defend against the original plaintiff. ]d. Those are not the circumstances presented here.

13