### 20I1O Trf STATE BY IN THE COURT OF APPEALS OF THE STATE OF WASHINGT r 9; 

### I

DIVISION II KAY JOHNSON and RICK JOHNSON, husband and wife and their marital community, Appellants,

v. ROY KISSLER and JANIE LUZZI - KISSLER, husband and wife and their marital community, and KISSLER MANAGEMENT, INC., No. 45116 - 6 -II

UNPUBLISHED OPINION

LEE, J. — 

### Kay and Rick Johnson appeal the superior court's order granting Roy and Janie Kisslers' motion for summaryjudgment and dismissing the Johnsons' adverse possession claim. The Johnsons argue thatthe superior court erred because there were genuine issues ofmaterial fact 

### precluding summaryjudgment. We reversethe superiorcourtand remand forfurtherproceedings. FACTS 

### The Johnsons own propertyadjacenttothe Kisslers' property. Achain - linkfence separates the two properties. 

### The chain - link fence is approximately three feet away from the property line 

### on the Kisslers' property. The three feet between the chain - link fence and the property line is the property at dispute here (the disputed parcel).No. 45116 - 6 -II
The Johnsons' property was originally owned 

### by Dona 

### Gainey Mathews (Gainey), who 

### acquired it in 1977. In 1982, George Fleming, apredecessor owner ofthe Kisslers' propery, built a house on his property and installed the chain - link fence that currently separates the two properties. After Fleming installed the chain - linkfence, Gainey treated the disputed parcel as her own property by clearing it and planting a garden. Gainey maintained the garden and treated all 

### the property on her side ofthe fence as her own until she sold her property to David and Judy Sizemore in 1996. She also installed adog run on partofthe disputedparcel. In2007,the Johnsons bought the property from the Sizemores. Fleming sold his property to the Halls in 1992. The.Halls subsequently sold the property to the Kisslers. 

### The Kisslers and Johnsons began having disagreements about the use of the disputed 

### parcel. The Johnsonsfiled acomplaint,allegingthattheyhad acquiredthe disputedparcel through
adverse possession.' 

### The Kisslers filed a motion for summaryjudgment to dismiss the Johnsons'
adverse possession claim and to quiet title to the disputed parcel in the Kisslers. The Kisslers 

### submitted evidence showing that, in 1984, a survey ofthe property was done that showed the
chain - link fence was not on the property 

### boundary line. 

### They also submitted an affidavit from 

### David Sizemore in which he stated that (1) the 1984 survey was attached tothe deed transferring the property to him, (2) he knew the chain - link fence was not the true 

### boundary line, (3) he had an 

### agreement with the Kisslers that he could use the disputed parcel as long as he did not plant
The complaint actually included several claims, many ofwhich were related to an easement on a different piece of the property. The remaining claims were dismissed when the Johnsons took a voluntary nonsuit under CR 41.
2No. 45116 - 6 -II vegetation with invasive root structures, and (4) he had the same understanding and agreement
with the Kisslers' predecessors, the Halls. Similarly, Roy Kissler submitted an affidavit stating 

### that he also knew the fence was not the boundary line and he gave the Sizemores permission to 

### use the disputed parcel so long as they did not plant vegetation with invasive root structures. The Kisslers also submitted the deeds transferring the property from Gaineyto the Sizemores, and the Sizemores to the Johnsons; neither ofthese deeds mentioned the disputed parcel.2 Intheir response to the Kisslers' motion for summaryjudgment,the Johnsons presented an affidavit from 

### Gainey. Gainey stated that she and Fleming considered the chain - link fence the boundary line between the properties and thatthey neverhad an agreement in which Fleming gave her permission to use the disputed parcel. 

### When Fleming sold the property to the Halls in 1992, 

### the chain -

linkfence was understood to be the boundary between the properties, and Gainey never obtained the Halls' permission to continue using the disputed parcel. After Fleming installed the 

### chain - link fence in 1982, Gainey used and maintained the disputed parcel as if it was her own property, never discussed the use with Fleming, and continued using and maintaining the disputed parcel until she sold it to the Sizemores in 1996. 

### The Johnsons also presented KayJohnson' s affidavit,which stated thatJudy Sizemore had 

### shown herthe property numerous times; and that Judy showed herthe plants that she had planted 

### on the disputed parcel and the new sprinkler system that the Sizemores had installed. Judy never once mentioned that the disputed parcel was not their property, thatthey used itwith the Kisslers' 

### permission,orthattheyhad anagreementwith the Kisslers regardingthe use ofthe disputed parcel.


### 2The deed from the Sizemores transfersthe propertyto "Kay Pruitt" who is nowKayJohnson. 3No. 45116 - 6 -II 

### Kay also stated that although she had numerous conversations aboutthe disputed parcel with the Kisslers, the Kisslers never mentioned that the disputed parcel was their property . or that they previously had an agreement with the Sizemores relating to the disputed parcel. In addition, the Johnsons submitted the disclosure form that the Sizemores had signed during the sale of the 

### property in which they stated that there was no disputed property or agreements regarding the use oftheir property. 

### The superior court granted the Kisslers' motion for summary judgment dismissing the Johnsons' claim. The superior court also quieted title to the disputed parcel in the Kisslers, ordered 

### the Johnsons to remove any plants or improvements from the disputed parcel, and awarded the Kisslers attorney fees. The Johnsons appeal. ANALYSIS 

### We review motions for summaryjudgment de novo and engage in the same inquiry as the superior court. Cole v. Laverty, 112 Wn.App. 180, 184, 49 P.3d 924 (2002). 

### Summaryjudgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56( c); 

### Cole, 112 Wn.App. at 184. We considerthe facts and all
reasonable inferences in the light most favorable to the nonmoving party. 

### Cole, 112 Wn.App. at 184. Ifreasonable minds could reach butone conclusion from all the evidence, summaryjudgment is correct. 

### Harberd v. City ofKettle Falls, 120 Wn. App. 498, 507 - 08, 84 P.3d 1241, review denied, 152 Wn.2d 1025 ( 2004). Bare assertions that a genuine issue of material fact exists will 

### not defeat summaryjudgment in the absence ofactual evidence. Harberd, 120 Wn.App. at 508. To establish ownership ofapiece ofproperty through adverse possession, a claimant must
prove that possession of the property was "( 1) open and notorious, (2) actual and uninterrupted,No. 45116 - 6 -II 3) exclusive, ( 4) hostile and under a claim of right, (5) for a period of 10 years." Shelton v. Strickland, 106 Wn. 

### App. 45, 50, 21 P. 3d 1179, review denied, 145 Wn.2d 1003 ( 2001). Title automatically vests in a claimant who satisfies the elements for the 10 - year period. Gorman v. 

### City of Woodinville, 175 Wn.2d 68, 72, 283 P.3d 1082 ( 2012). " Adverse possession is a mixed question of law and fact: whether the essential facts exist is for the trier offact, but whether the facts constitute adverse possession is for the court to determine as a matter of law." Lingvall v. Bartmess, 97 Wn.App. 245, 253, 982 P.2d 690 ( 1999). 

### The Johnsons argue that the superior court erred by granting the Kisslers' motion for 

### summaryjudgment because title to the disputed parcel vested in Gainey before the property was 

### evertransferred to the Sizemores, and therefore, any agreement thatthe Sizemores may have had with the Halls and Kisslers could not have transferred title ofthe disputed parcel backto the Halls or the Kisslers and is immaterial. We agree. It is undisputedthat Gainey' s use ofthe disputed parcel was open and notorious, actual and uninterrupted, exclusive, and for a period of at least 10 years. Gainey' s affidavit establishes that she cleared the disputed parcel and maintained it as a garden as if itwere her own propertyforthe 

### entire period between 1982 and 1996, when she sold her property. Therefore,the only element at 

### issue here is whether Gainey' s use ofthe disputed parcel was hostile. 

### To satisfy the hostility element, the claimant' s use must be adverse to the title owner' s interest. Herrin v. O' Hern, 168 Wn.

### App. 305, 311, 275 P. 3d 1231 ( 2012). Subjective belief in ownership does not establish 

### hostility. Chaplin v. Sanders, 100 Wn.2d 853, 861, 676 P.2d 431 1984). When a person landscapes and maintains the property as if it were his or her own, in the same manner as an owner, the use satisfies the hostility element. Maier v. Giske, 154 Wn.App.
5No. 45116 - 6 -I1 6, 19, 223 P. 3d 1265 ( 2010); Lingvall, 97 Wn. App. at 254. However, a claimant' s use is not hostile ifthe title owner granted the claimant permission to use the disputed property. Harris v. Urell, 133 Wn.App. 130, 139, 135 P. 3d 530 (2006), review denied, 160 Wn.2d 1012 (2007). 

### The Kisslers assertthat because aproperty surveywas completed afterthe chain - linkfence was installed, it can be inferred that Fleming knewthe correct property boundary. Therefore, the appropriate inference is that Fleming gave Gainey permission to use the disputed parcel for her garden. However, in a motion for summaryjudgment,all reasonable inferences mustbe drawn in favor ofthe nonmoving party. Here, the Johnsons are the nonmoving party and are entitled to all 

### reasonable inferences being drawn in their favor. Therefore, drawingthe inference that Fleming 

### gave Gainey permission to use the property, which is an inference in favor ofthe Kisslers, is improper in a summaryjudgment motion brought bythe Kisslers. The Kisslers also argue thatthe Johnsons cannot establishthe hostility requirement because 

### Sizemore' s declaration shows that he knew and agreed that the property belonged to the Kisslers. However, once adverse possession is established by. 10 years of adverse use, title automatically
passes to the claimant. 

### Halverson v. City ofBellevue, 41 Wn. App. 457, 460, 704 P.2d 1232 1985). 

### There is sufficient evidence to showthat Gainey usedthe disputed parcel as herownfrom 1982 to 1996. 

### Therefore, for summaryjudgment purposes, the Johnsons have demonstrated that title to the disputed parcel vested in Gainey during the period that she owned her property. Once title passed to Gainey, the Sizemores' purported understanding that the property actually belonged to the Kisslers did not divest title ofthe disputed parcel. In Mugaas v. Smith, 33 Wn.2d 429, 431, 206 P.2d 332 ( 1949), our Supreme Court stated:

6No. 45116 - 6 -IIWe have on several occasions approved a statement which appears in Towles v. Hamilton, 94 Neb. 588, 143 N.W. 935, 936, that: 

### It is elementary that where the title has become fully vested by disseizin so long continued as to bar an action, it cannot be divested by parol abandonment 

### or relinquishment or by verbal declarations ofthe disseizor, nor by any other act 

### short ofwhatwould be required in a case where histitlewas bydeed."

See McInnis v. Day [Lumber] Co., 102 Wash. 38, 172 [ P]. 844 [ 1918]; King 

### County v. Hagen, 30 Wn.(2d) 847, 194 P.(2d) 357 [ 1948].

Appellants cite no cases, and we have found none, supporting their contention that, under a recording statute ... a conveyance ofthe record title to a 

### bona fide purchaser will extinguish a title acquired by adverse possession. Accordingly,the Kisslers' contention thatthe Sizemores' purported understanding and agreement 

### withthe Halls and the Kisslers somehowterminated or extinguishedthetitle acquired by Gainey' s adverse possession ofthe disputed parcel lacks merit. 

### The superior court erred by granting the Kisslers' motion for summaryjudgment because, as a matter of law,title ofthe disputed parcel vested in Gainey and ultimately transferred to the Johnsons. 

### We reverse the superior court's order granting summaryjudgment to the Kisslers and remand for further proceedings.3



### 3 Because we reverse the superior court's order granting summary judgment in favor of the Kisslers, we also reverse the superior court' s other orders predicated on the order granting 

### summaryjudgment:the order ofejectment and order granting injunctive relief. Furthermore, we decline the Johnson' request to grant summaryjudgment in their favor. Although, as a matter of law,title to the disputed parcel was transferred to them, the Johnsons did not file a cross -

motion for summaryjudgment in the superior court. And, we rejectthe Johnsons' 

### contention that it is appropriate forthem to make, and forus to grant, across-motion for summary judgment for the first time on appeal. Accordingly, there is no basis for us to grantjudgment in the Johnsons favor. 7No. 45116 - 6 -II ATTORNEY FEES 

### The Johnsons argue that the superior court erred by granting attorney fees to the Kisslers. 

### We review a superior court's decision regarding attorney fees foran abuse ofdiscretion. Morgan v. Kingen, 166 Wn.2d 526, 539, 210 P.3d 995 ( 2009). RCW 7.28.083(3) allows the superior court to award attorney fees to the prevailing party on an adverse possession claim. Here, the superior court improperly granted the Kisslers' motion 

### for summaryjudgment;therefore,the Kisslers were notthe prevailing party. Becausethe Kisslers were notthe prevailing party,the superior court erred byawarding the Kisslers their attorneyfees. The Johnsons request attorney fees on appeal under RAP 18. 1 and RCW 4.84. 185. RCW 4.84. 185 allows an award ofattorney fees to a party opposing a frivolous action or defense. The Johnsons argue that the Kisslers' defensethatthe Sizemores' purported agreement with the Halls

or the Kisslers defeated the Johnsons' claim for adverse possession — was frivolous and advanced
without a reasonable basis. A defense is frivolous if,considering the defense in its entirety, it
cannot be supported 

### by any rational argument based in fact or law. Dave Johnson Ins., Inc. v. Wright, 167 Wn.App. 758, 785, 275 P. 3d 339, review denied, 175 Wn.2d 1008 ( 2012). Here, the Kisslers were relying on arguments that prevailed in the superior court. Although incorrect, we do not consider the Kisslers' position frivolous.

The Kisslers also request attorney fees on appeal. However, given that the Kisslers have 

### not prevailed on appeal, they are not entitled to attorney fees.

8No. 45116 - 6 -II 

### We reversethe superior court's order granting summaryjudgment in favor ofthe Kisslers and all subsequent orders predicated on the superior court's summaryjudgment order. We also 

### reverse the superior court's order granting the Kisslers attorney fees. We remand forfurther proceedings. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

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