### ,;0U?.7 OF APPEALS Ghj i STATt OF WASHING iU;l 

## 2013OCT 1U ml 9= 15

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE DAVID C. COTTINGHAM and JOAN S. COTTINGHAM, Appellants/Cross Respondents,

v. RONALD J. MORGAN and KAYE L. MORGAN, Husband and Wife, Respondents/Cross Appellants. No. 68202-4-1 (Consolidated with No. 68402-7-1)

UNPUBLISHED OPINION

FILED: October 14, 2013 

### Schindler, J. — David and Joan Cottingham (Cottingham) own waterfront 

### property on Lake Whatcom. Ronald and Kaye Morgan (Morgan) own an adjacent waterfront lot. Cottingham filed a lawsuitagainst Morgan claiming ownership of a 

### portion of Morgan's property byadverse possession. Cottingham also asserted claims fornuisance, outrage, conversion, and trespass. Morganfiled a counterclaim to quiet 

### title to the disputed area. The court granted Cottingham's motion forpartial summary 

### judgment, concluding Cottingham established adverse possession ofapproximately 800 square feet of Morgan'sproperty. But at the conclusion of the trial, the courtfound that 

### Cottingham established adverse possession as toonly 292.3 square feet ofMorgan's property. The court quietedtitle to the property in Cottingham butallowed Morgan to 

### purchase the property atfair marketvalue. The court also orderedMorgan pay treble

### No. 68202-4-1 (Consol. with No. 68402-7-l)/2 

### damages under thetimbertrespass statute, and dismissedCottingham's claims for nuisance and outrage. 

### On appeal, Cottingham contends the court erred in revising the decision on 

### partial summary judgment, allowing Morgan to purchase the property, and dismissing the nuisance and outrage claims. Morgancross appeals the ordergranting partial summaryjudgment, the determination that he committed conversion, and the award of 

### treble damages. We affirmthe trial court in all respects but remand to address an 

### inconsistent conclusion of law inthe "Supplemental Findings ofFact and Conclusions of Law." FACTS David and Joan Cottingham (Cottingham) own two waterfront lots on Lake Whatcom, Lot 9 and Lot 10 ofthe "Nixon Beach" tracts. Lot 9 is directly north of Lot 10. The lots are narrow and rectangular. The western edge ofthe lots borders Lake Whatcom. Cottingham's house is located on Lot 9. Lot 11 shares a boundary with Lot 10. Lot 11 is also a narrow rectangulartract of land with the western edge bordering Lake Whatcom. A 10-foot-wide private road runs across the eastern edge ofthe Nixon Beach tracts. The road is held in undivided ownership interests for all ofthe owners of 14 Nixon Beach lots.1 In 2004, Ronald and Kaye Morgan (Morgan) considered purchasing Lot 11. In 2005, Morgan retained Larry Steele to conduct a survey. InJanuary 2006, Morgan purchased Lot 11. A row of laurels was located along the boundary between Lot 10 and
Lot 11.

1The deed to Lot 11 states that title includes an "undivided 14th interest inthe road shown on the plat."

### No. 68202-4-1 (Consol. with No. 68402-7-l)/3 In August 2006, Morgan began construction ofthe house, a fence, and a 

### driveway. Morgan installed the fence along the property line indentified in the Steele survey. InSeptember 2007, Morgan removed eight ofthe laurels to constructthe 

### driveway. Infall 2008, ground waterfrom the septic tank was inadvertently pumped onto the lotsouth of Lot 11. Morgan installed a new drain field inthe spring. InJune 2009, Cottingham filed an action to quiet title to a portion of Lot 11 asserting ownership by adverse possession. Cottingham also alleged claims for trespass, conversion, nuisance, and outrage. Morgan filed a counterclaim to quiettitle to the disputed portion of his property. 

### Cottingham filed a motion for partial summaryjudgment on adverse possession. Cottingham submitted a declaration stating that beginning in 1989, he mowed and cleared blackberry inthe disputed area. Cottingham also stated that between 1989 and 1994, he planted rhododendrons, the laurel hedge, a garden, a locust tree, and a hydrangea on or near the disputed area, and installed a compost structure and a swing set inthe disputed area. Cottingham said that he planted another row of laurels on the eastern end ofthe boundary in 1995. Cottingham also submitted the declaration of Steven Otten. Often maintained Lot 11 for the previous owner, Gladys Cook, until she sold the property in 1998. Otten stated that the disputed area "was being regularly mowed and maintained and used by Cottinghams." Inopposition, Morgan argued that when he visited the property in 2004 and 2005, he never saw "any evidence ofany occupation of Lot 11 by plaintiffs or anyone else." Morgan submitted the declaration of his surveyor Steele. Steele stated that

### No. 68202-4-1 (Consol. with No. 68402-7-l)/4 

### when hevisited the property between January 2005 and January 2007, hedid not "see evidence of any established boundaryline, or witness orsee evidence of any adverse occupation." Steele also stated that there was "an uneven row of bushes some ofwhich 

### were north of Lot11, some of which were on the surveyed property line, and some of which were on Lot 11." 

### The court granted the motion for partial summaryjudgment. The court concluded 

### the unrebutted evidence established that Cottingham adversely possessed approximately 800 square feet of the property located nearthe boundary line near Lot 10 and Lot 11 beginning in 1989. The order states, inpertinent part: "Defense has raised disputed legal conclusions, but no relevant issues of material fact. The adverse possession lasted well in excess ofthe statutory requirement." Several witnesses testified during the four-day trial on the remaining claims, including Cottingham, Morgan, septic installer Thomas Pulver, real estate appraiser Don 

### Gustafson, andsurveyors BruceAyers andSteele.2 Thecourtalsoconducted a site
visit. At the conclusion ofthe trial, the court revised its ruling on partial summary judgment "because at trial itbecame clear" that many ofthe laurels were "clearly on Lot 10 and not Lot 11." The court ruled that Cottingham had established adverse possession as to only 292.3 square feet and not 800 square feet ofthe disputed area. The court also ruled that Morgan was entitled to purchase the 292.3 square feet from Cottingham and that title "inthe disputed property, and all of Lot 11 should be quieted in Morgan upon payment of $8,216.55 to Cottingham." Finding offact 23 states, in

2The otherwitnesses wereWhatcom County Environmental Health SpecialistEdward Halasz and septic designer Sharon Kettells. 4

### No. 68202-4-1 (Consol. with No. 68402-7-l)/5 pertinent part: Although Cottingham acquired a portion of Lot 11 by adverse possession, that portion acquired: A. provides littlevalue to the Cottinghams; B. is ofgreat value to the Morgans, providing for minimum set back requirements; C. any remedy requested by Cottingham would result in substantial permanent improvements being removed on Lot 11 and/or would likely create safety issues related to access to all ofthe Morgan residence and property; and D. any remedy requested by Cottingham would likelyresult in further disputes and conflict as opposed to ending this matter. E. not to allow the Morgans to purchase the property from the Cottinghams would place an unreasonable restriction on the use ofthe Morgan's property, without giving much benefit to the Cottinghams. F. not to allow the purchase would significantly affect marketability and usability ofthe Morgans' property. The Court should exercise its equitable powers and require thatthe Morgans purchase that portion ofthe disputed area adversely possessed at fair market value. The court also ruled that Morgan committed the tort ofconversion by removing several laurels that were clearly not on his property and ordered him to pay treble damages underthe timbertrespass statute, RCW 64.12.030. The findings offact state, in pertinent part: 27. The laurel bushes removed by Morgans were clearly not 

### theirs, regardless of location or condition. Morgan committed the tort of conversion in taking them. 28. The fair market value to replace the laurels is $4342.98. 29. The Morgans knew ofthe existence of a bona fide property 

### line dispute but nonetheless intentionally removed the eight laurels in violation of R.C.W. 64.12.030. Therefore, damages should be trebled. 

### The court rejected Cottingham's nuisance and outrage claims. The court found that "[t]heMorgans have not been involved in a public nuisance as claimed by Cottinghams. Any spill from the old septic system or delay in designing a new system

was de minimus and occurred in good faith."No. 68202-4-1 (Consol. with No. 68402-7-l)/6 

### The court entered ajudgmentagainst Morgan inthe amount of$21,245.49: 1. Fortimbertrespass waste under RCW 64.12.030, damages for which, at $4,342.98, are trebled for $13,028.94. 2. For purchase ofthe "disputed area" $8216.55. 

### Cottingham filed a motion to reconsider, vacate thejudgment, amend the findings of fact and conclusions of law, or grant a new trial. The court denied Cottingham's 

### motion and entered Supplemental Findings of Fact and Conclusions of Lawproposed 

### by Morgan.3
ANALYSIS 

### Cottingham contends the court erred in revising the decision on partial summary 

### judgment,ordering him to sell the property he owned byadverse possession, and dismissing the nuisance and outrage claims. Morgan cross appeals thefinding that 

### Cottingham established adverse possession of a portion ofLot 11,thefinding that he committed conversion, and the decision to award Cottingham treble damages under the timbertrespass statute. Adverse Possession 

### Cottingham claims the court erredin revising the decision onpartial summary 

### judgmentbyfinding that heestablished adverse possession as toonly 292.3 square feet ofLot 11. We disagree. Because the order on partial summary judgment was not

3Supplemental finding offact 23 states: The portion of Lot11 claimed by Cottingham byadverse possession: A. provides littlevalue to the Cottinghams; B. is of great value to the Morgans providing for minimum set back requirements for the residence, septic system and driveway; C. Morgan at notime actedin badfaith norwillfully in violation of anyclaim [o]f title to Lot 11 ofCottingham; D. anyremedy requestedby Cottinghamwould resultin substantial permanentimprovements being removed onLot 11 and/orwould likely createsafety issues related to access to all of the Morgan residence and property; and

### No. 68202-4-1 (Consol. with No. 68402-7-l)/7 

### final, the court had the authority to modify the order at any time prior to entry of the final judgment. CR 54(b); Washburn v. Beatt Equip. Co.. 120 Wn.2d 246, 300, 840 P.2d 860 (1992).

### Cottingham also argues substantial evidence does not supportthe finding that 

### thedisputed area was only 292.3 square feet and not 800 square feet.4 To establish ownership by adverse possession, Cottingham had the burden of establishing that possession ofthe disputed area was (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile for the 10-year statutory period. RCW 4.16.020(1); Chaplin v. Sanders. 100 Wn.2d 853, 857, 676 P.2d 431 (1984); JJT Ravonier. Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). The party claiming adverse possession has the burden of establishing each element. Miller v. Anderson, 91 Wn. App. 822, 828, 964 P.2d 365 (1998). Whether a person has gained title by adverse possession is a mixed question of law and fact. Miller, 91 Wn. App. at 828. Whether the facts establish adverse possession is a question of law that we review de

novo. Bryant v. Palmer Coking Coal Co.. 86 Wn. App. 204, 210, 936 P.2d 1163 (1997). We review a trial court's findings offact to determine whether substantial evidence supports the findings offact and, in turn, whether the findings support the conclusions of law. Scott v. Trans-Svs.. Inc.. 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003). 

### Substantial evidence is the quantum ofevidence sufficient to persuade a rational, fairminded person that the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). The court views the evidence and all 

### 4Cottinghamwaived his righttochallengefindings offact4,5, 7, 8, 10, 14, 15, 18; conclusion of law 9; and amended conclusions of law 7 and 11; and assignments oferror regarding the lis pendens, the supersedeas bond, and the motion to strike portions ofdeclarations submitted in support of summary judgment. None of these assignments of error are addressed in the argument section of the brief. Cowiche Canyon Conservancy v. Boslev. 118 Wn. 2d 801, 809, 828 P.2d 549 (1992).

### No. 68202-4-1 (Consol. with No. 68402-7-l)/8 reasonable inferences inthe lightmostfavorable to the prevailing party. Korst v. McMahon, 136 Wn. App. 202, 206, 148 P.3d 1081 (2006). We deferto the trial court's determination regarding conflicting evidence and credibility ofthe witnesses. Weyerhaeuser v. Tacoma-Pierce County Health Dep't, 123 Wn. App. 59, 65, 96 P.3d 460 (2004). "The party challenging a finding offact bears the burden of showing that it is not supported by the record." Panorama Vill. Homeowners Ass'n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000). Unchallenged findings of fact are verities on appeal. Moreman v. Butcher. 126 Wn.2d 36, 40, 891 P.2d 725 (1995).Substantial evidence supports the finding that Cottingham adversely possessed 

### only 292.3 square feet of Lot 11 because "many laurels were planted on a portion of the 

### joint property line and a substantial portion of them were clearly on Lot 10 and not Lot 11." The record also supports the finding that only the laurels "on the east part ofthe

common linewere planted

... on Lot 11, inthe disputed area." The Steele survey 

### depicts the placement of the laurels in 2005. Steele testified thatthe laurel hedge was 

### located on Lot 11 along the eastern edge of the boundary with Lot 10. The survey also shows the laurel hedge continuing west along the boundary toward the lake and then crossing the boundary line onto Lot 10. Equitable Sale 

### Cottingham claims the court abused its discretion byallowing Morgan to purchase the 292.3 square feet. Quiet title actions are equitable in nature. Durrahv. Wright, 115 Wn. App. 634, 639, 63 P.3d 184 (2003). A trial court sitting in equity has broad discretion to fashion a remedy "to do substantialjustice." Esmieu v. Hsieh, 92

8

### No. 68202-4-1 (Consol. with No. 68402-7-l)/9 

### Wn.2d 530, 535, 598 P.2d 1369(1979); Haueterv. Rancich. 39Wn. App. 328, 331, 693 P.2d 168(1984). 

### We review the authority of a court to fashion an equitable remedy forabuse of discretion. Sac Downtown Ltd. P'ship v. Kahn, 123 Wn.2d 197, 204, 867 P.2d 605 

### (1994). The trialcourt's equity power is "flexibleand fact-specific." Proctorv. Huntington, 169 Wn.2d 491, 503, 238 P.3d 1117 (2010). The factors setforth in Proctor support the trial court's decision. In Proctor, the 

### Huntingtons mistakenly built their home, well, and garage on a portion ofProctor's land. Proctor, 169 Wn.2d at 494. Proctor sued the Huntingtons forejectment. Proctor, 169 Wn.2d at 495. The trial court ordered Proctorto sell the land to the Huntingtons. Proctor. 169 Wn.2d at 495. On appeal, the Washington Supreme Court identified a number offactors the trial court should consider infashioning the equitable relief, and affirmed. Proctor, 169 Wn.2d at 504. The Court identified the following factors: (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; (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. 

### Proctor. 169Wn.2d at5005 (quoting Arnold v. Melani. 75Wn.2d 143, 152, 437P.2d 908 (1968)). The Court held that the trial court did not abuse is discretion by refusing "to require the Huntingtons to remove their entire house, garage, and well—at an estimated cost ofover $300,000—because of both parties' good-faith surveying mistake." Proctor, 169Wn.2dat503.

5(Internal quotation marks omitted.)

### No. 68202-4-1 (Consol. with No. 68402-7-l)/10 Here, the courtexpressly found that Morgan "at no time acted in bad faith nor 

### willfully in violation of anyclaim [of] title to Lot 11 ofCottingham," and the damage to Cottingham was slight and the benefit ofremoval small. The courtfound that the 

### portion of Lot 11 that Cottingham acquired by adverse possession was oflittle value to 

### Cottingham. The court also found that the sale of the disputed area did not limit 

### Cottingham's use of the property, and Cottingham could still build a garage and access Lake Whatcom. 

### In contrast, the court found that the disputed area was very valuable to Morgan because the land was necessary to meetthe "minimumset back requirements for the residence, septic system and driveway." The record shows there was less than 1.5 feet between Morgan's garage and the boundary. Real estate appraiser Don Gustafson 

### testified that a setback ofless than fivefeet affects marketability. The court also found that ifCottingham had title to the disputed area, it "would likelycreate safety issues related to access to all ofthe Morgan residence and property." We hold the court did not abuse its discretion by ordering the equitable sale. Nuisance Cottingham claims the court erred in dismissing his public nuisance claim. A "public nuisance" is a nuisance "which affects equally the rights of an entire community

or neighborhood." RCW 7.48.130. A nuisance action may be brought by "any person whose property is . . . injuriously affected or whose personal enjoyment is lessened by the nuisance." RCW 7.48.020. Nuisance is a substantial and unreasonable interference with the use and enjoyment of land. Grundy v. Thurston County, 155 Wn.2d 1, 6-7, 117 P.3d 1089 (2005).

10

### No. 68202-4-1 (Consol.with No. 68402-7-l)/11 

### Cottingham challenges thefinding thatMorgan "believ[ed] that he was merely pumping odorless groundwater" from a hole on hisproperty, that "[a]ny spill from the old septic system or delay in designing a new system was de minimus and occurred in good faith," and that Morgan believed he was pumping "[gjroundwater [and] rainwater" and "couldn't smell anything." 

### Substantial evidence supports the findings. Septic installer Thomas Pulver 

### testified that when he excavated the old drainfield, there was no pooling of effluent or any evidence that anything spilled onto the Cottingham's property. Further, the unchallenged finding states that "[t]here was no substantial evidence that effluentwas 

### pumped from the tank or, if itwere, that itcaused any damage." Unchallenged finding of fact 24 also states thatthe delay infixing the septic system was due to wet winter weather: "During the wet winter months itcan be problematic with the watertable inthe

area to rebuild a septic field

.... The delay was in the hands of professionals and not unreasonable under the circumstances."6 Outrage Cottingham also asserts the trial court erred in dismissing his outrage claim. To establish outrage, a plaintiffmust show "behavior 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds ofdecency, and to be regarded

as atrocious, and utterly intolerable in a civilized community.'" Kloepfel v. Bokor, 149

6(Emphasis added.) Cottingham also arguesLeo Day isnot acertified septicinstallerand there is no evidence Whatcom County required the rocks installed as barriers around the drain field. The record does not support Cottingham's argument. The record shows that Leo Day worked for Ultra Tank Services. Thomas Pulver, the owner of Ultra Tank, is a licensed Whatcom County septic installer. A Whatcom County Health Department on-site sewage construction permit indicates, "Trafficcontrol barriers [are] required along perimeterof driveway adjacentto main and reserve drainfield." 11

### No. 68202-4-1 (Consol. with No. 68402-7-1)/*!2 

### Wn.2d 192, 196, 66P.3d 630(2003)7 (quoting Grimsbyv. Samson, 85Wn.2d 52, 59, 530 P.2d 291 (1975)). The unchallenged finding that "[n]o conduct ofMorgans could be regarded as atrocious or utterly intolerable in a civilized community" supports dismissal ofthe outrage claim. Cross Appeal Morgan contends the court erred in concluding Cottingham established adverse possession. When reviewing a grant of summaryjudgment, we undertake the same inquiry as the trial court. Wilson v. Steinbach. 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Under CR 56, the moving party bears the initialburden ofshowing the absence ofgenuine material issues offact and that the moving party is entitled tojudgment as a matter of law. Young v. Key Pharm.. Inc.. 112 Wn.2d 216. 225, 770 P.2d 182 (1989). Ifthe 

### moving party meets its initial burden, the nonmoving party must setforth specific facts to rebut showing that a genuine issue as to a material fact exists. Allard v. Bd. of Regents of Univ. ofWash., 25 Wn. App. 243, 247, 606 P.2d 280 (1980). Here, the unrebutted evidence established Cottingham adversely possessed the 

### disputed area from 1995 to 2005. The court did not err inconcluding Cottingham adversely possessed the disputed area and granting the motion for partial summary judgment. 

### Morgan also challenges the findingthat he committed the tort ofconversion by removing eight laurel bushes. "Conversion" is " 'the act ofwillfully interfering with any 

### chattel, withoutlawfuljustification,whereby any person entitled thereto is deprived of the possession of it.'" Brown v. Brown. 157 Wn. App. 803, 817-18, 239 P.3d 602 7(Emphasis omitted.) 12

### No. 68202-4-1 (Consol. with No. 68402-7-l)/13 (2010) (quoting Consulting Overseas Mgmt, Ltd. v. Shtikel. 105 Wn. App. 80, 83, 18 P.3d 1144 (2001)). Because substantial evidence supports the finding that Morgan "knew ofthe existence of a bona fide property line dispute but nonetheless intentionally removed the eight laurels in violation of R.C.W. 64.12.030," the trial court did not err in awarding treble damages. In October 2007, Morgan wrote Cottingham a letterwith a subject line, "Morgan/Cottingham Lot Line," informing Cottingham that he had removed several laurels.[W]e have removed the marked portions ofthe hedge needed to provide adequate access to our house. Under any possible compromise the marked laurels could not stay. 

### Iam stillwilling to discuss a transfer ofsome property at the back of our lot in return for some property at the front of your lot ifyou need this to develop your separate lot. At a minimum, however, we would need a permanent easementfor ingress and egress overthe back part ofthe property to get reasonable access to our home. 

### The unchallenged findings of fact also state that "[w]henthe Morgans purchased 

### their property they were aware of the laurels and their location inclose proximityto the survey line." There is also no dispute that Cottingham planted the laurels as a hedge between Lots 10 and 11.8 

### Morgan claims the trial court erred by trebling the damages for the cost of the laurels because the timbertrespass statute did not apply. We disagree. The timber trespass statute states, in pertinent part: 

### Whenever any person shall cut down, girdle, or otherwise injure, or carry 

### off any tree, . . . timber, or shrub on the land ofanother person, . . . without 8Thecases Morgan relies on,Lane v. W.J. Currv &Sons. 92S.W.3d 355, 364(Tenn. 2002), and Gostina v. Ryland, 116 Wash. 228, 234-35, 199 P. 298 (1921), are inapposite because they address nuisance, not conversion. 13

### No. 68202-4-1 (Consol. with No. 68402-7-l)/14 

### lawful authority, in an action by the person, city, or townagainstthe person committing the trespasses or any of them, anyjudgmentfor the plaintiffshall be fortreble the amount ofdamages claimed or assessed. 

## RCW64.12.030.9 Ifatrespasserhas knowledge ofabonafide boundarydispute, treble damages are appropriate. RCW 64.12.030; Maierv. Giske, 154 Wn. App. 6, 21, 223 P.3d 1265(2010). Supplemental Findings of Fact and Conclusions of Law 

### We affirm the trial court in all respects but remand to address what appears to be

an inadvertent error inthe Supplemental Findings of Fact and Conclusions of Law. In 

### the Supplemental Findings ofFact and Conclusions of Law, the court clearly crossed out the proposed finding that "Cottinghams have not established that they adversely 

### possessed anyportion ofLot 11 ."10 However, the courtdid not cross out the corresponding conclusion of law that states, "The Cottinghams have not established all elements of adverse possession by clear, cogent and convincing evidence as to any 

### portion ofLot 11 ."11 Accordingly, weremand to address thediscrepancy.

(Emphasis added.) 10 (Emphasis added.) 11 (Emphasis added.) This amendedconclusion oflaw is alsocontrary to thefinding that Cottingham established adverse possession to 292.3 square feet of Lot 11, the orderallowing Morgan to pay Cottingham $8,216.55 to purchase a portion of Lot 11, and entry of thejudgment. On appeal, Morgan admits there is "some confusion in the record" aboutthe court's ruling on adverse possession. 14No. 68202-4-1 (Consol. with No. 68402-7-l)/15 

### We affirm in allrespects but remand to address the inconsistent conclusion of 

## lawinthe Supplemental Findings ofFactand Conclusions ofLaw.12



# >Wti?A

WE CONCUR: 

# £~j &. y G?w«-^

12Cottingham isnotentitled toattorney fees onappeal based on thestatutes hecites. 15