### FILED March 2, 2016 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE TOM G. LUTZ and KARENLUTZ, husband and wife, Respondents,
v. LISAA. BUFFINGTON andJOHNDOE BUFFINGTON, husband andwife, and TheESTATE OF DENNIS H. LEMLER ) ) ) ) ) ) ) ) ) ) and/or his heirs, and SETHLEMLER, and ) TONI LEMLER, husband andwife, and ) SCHUYLERLEMLERandJANE DOE ) LEMLER, husband andwife, and ALL OTHERPERSONS ORPARTIES UNKNOWN ClaimingAny right, Title, Estate, Lien orInterest in the Real Estate Described in this Complaint, Appellants. ) ) ) ) ) ) ) No. 

### 32878-3-111

UNPUBLISHED OPINION

SIDDOWAY, C.J. -AfterLisaBuffington successfully suedto invalidate an express easement overthe northern tip ofherpropertythat Tom and KarenLutz hadNo. 32878-3-III Lutz v. Buffington
relied on for access to their land for almost 10 years, the Lutzes broughtthis action under RCW 8.24.030, asking the courtto declare a private way ofnecessity. Following a bench trial, the court grantedthe Lutzes' requested reliefconditioned upon theirpaymentto Ms. Buffington of$12,430 for the taking and as severance damages, togetherwith $35,911 in attorney fees and costs. The Lutzes satisfiedthejudgment. Ms. Buffington appeals, arguingthat the Lutzes' present action was a compulsory counterclaim in her earlier action and is barredby their failure to assert it, thatthe Lutzes failed to name as necessary parties other owners ofproperty in the residential development where Ms. Buffington lives, thatthe Lutzes did not establish reasonable necessity, thatthey shouldhave been denied reliefon account ofundue delay in seeking it, and that the compensation awarded for the taking was insufficient. We find no error or abuse ofdiscretion and affirm. We award Ms. Buffingtonherreasonable fees and costs
on appeal reduced by 30percentto account for the extent to which unmeritorious assignments oferror unnecessarily contributed to the cost ofthe appeal. FACTS PonderosaPark is a subdivision near Goldendale in Klickitat County. Itis divided into parcels ofabout five acres in size. Privateroads serve the subdivision.

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# INo. 32878-3-111 Lutzv. Buffington
In 1973, Tom and Karen Lutzpurchased 10 acres ofproperty adjacentto Ponderosa Park, known as lot 113. Lot 113 had no roadway access. The Lutzes reached the property on foot by using a walkingpath from a road within Ponderosa Park. In March 1996, PonderosaParcels, Inc. (PPI), the developer ofPonderosa Park, entered into a real estate contractto sell lot 82 to Lisa Buffington and her now deceased husband, Dennis Lemler. The real estate contractwas recorded with the Klickitat County auditor later that month. Six months later, in September 1996, the Lutzes purchased lots 110 and 112 from Ernest and Jean Brokaw. 1 The two lots were outside ofbut adjacentto Ponderosa Park,
were adjacent to lot 113, and also lacked access. In connection withthis purchase, Mr. Lutz negotiated for access with W. Kershaw, a principal ofPPI and its then-president. Coincident with the Lutzes' purchase ofthe two parce.ls, PPI executed a grant of easement, granting to the Lutzes a nonexclusive perpetual easement "forthe use ofall roads located within all recorded Plats ofthe Ponderosa Park." Clerk's Papers (Oct. 23, 2014) (CP) at 68. Since the terminus ofthe closestprivate road to the Lutzes' property
I The statutory warranty deed described the parcels conveyed by section; both were described as located in Section 32, Township 5North, Range 16 East, W.M. What we will refer to as "lot 110" was described in the deed as "TheNortheast Quarter ofthe Northwest Quarter ofthe Southeast Quarter." Clerk's Paper's (Oct. 23, 2014) (CP) at 73. What we will refer to as "lot 112" was described in the deed as "The East Halfofthe Southwest Quarter ofthe Northwest Quarter ofthe Southeast Quarter." Id.
3No. 32878-3-III Lutz v. Buffington (TamarackRoad) was separated from lot 110 by the northern point ofthe triangularshaped lot 82, PPI also conveyed a nonexclusive perpetual access easement "beginning along the Northerly boundary of
...Lot 82 and extending Southerly for 60 feet, providing access ... from thatprivate road in Ponderosa Park named 'Tamarack.'" Id. The Buffingtons did notjoin in the conveyance ofthe access easement. A map appended to the grant ofeasement roughly depicts the .08 acre piece oflot 82 that was subject to the easement with hash marks:

CP at 69 (partial). The Lutzes' newly-acquired 10-acre lot 110 is located immediately to the east of lot 82. The grant ofeasementprovided that in consideration for granting ofthe easements, the Lutzes "shallpay to the Ponderosa Park Owners' Association
... a yearly assessment ...which assessment is not to exceed the amount charged as a road

4No. 32878-3-III Lutzv. Buffington

assessment to each lot owner in Ponderosa Park subdivision." CP at 68. The Lutzes paid the yearly assessment for the next 13 years until, in 2009, the homeowners' association refused to accept the payment. Shortly afterpurchasing the additional two lots and acquiring the easement, the Lutzes used the roads in Ponderosa Park and the easementto construct a gravel access road that became Lutz Parkway. Consistent with the easement, Lutz Parkway crosses the northern tip oflot 82 at a maximum width of60 feet in orderto connect Tamarack Road to lot 110. The Lutzes used the roadway overthe years to develop lots 110 and 113, including to install electrical power, otherutilities, water wells and septic systems. Manufactured homes were placed on lots 110 and 113 and tenants have used Lutz Parkway for ingress and egress. In 2006, Ms. Buffington filed a quiet title action to preventthe Lutzes and their tenants from using the corner ofher lot for access. After identifying herself, the Lutzes, and their ownership ofrelevant land, her complaint alleged only the following: 3. The defendants claim a right to an easement overplaintiffs property by virtue ofan express grant ofeasement. This grant was not made a [sic] plaintiffor anyone in privity with plaintiffand was made by a person without authority to grant the easement. 4. An order should be entered quieting title in plaintiffs property free from any claims ofdefendants. WHEREFORE, plaintiffprays for an order quieting title in the aforementioned real property in her free ofall claims made by defendants.
5No. 32878-3-III Lutz v. Buffington
CP at 40-41.2 In an answer and counterclaim, the Lutzes prayedthat Ms. Buffington be denied herrequest for reliefand thatthe court enter ajudgmentquieting title to the 1996 easement in them, free and clear ofany claim ofMs. Buffington. They alleged that "[o]ne or all" oftheirparcels was or were "the dominanttenements benefitedby" the 1996 easement. 3 CP at 43. Following a bench trial, the court invalidated the access easement over lot 82, concluding that PPI lacked authority to grant an easement overthe lot afterhaving sold it under contractto the Buffingtons. The court concluded that the Lutzes were on notice of
2 The dissent disputes thatthese allegations stated a claim thatwas limited to the express easementright then being asserted by the Lutzes. Itcontends that Ms. Buffington's complaint also placed at issue any right in the Lutzes to a private way of necessity. Dissent at 2-4. In that event, she should have objected to the clearly more narrowjudgmententered in the first action and pursued a timely appeal. 3 The grant ofeasement statedthat it was grantedto the Lutzes "torun in perpetuity with the following described land," followed bythe legal description for lot 110. The Lutzes' othertwo parcels adjoin lot 110, but not lot 82. Mr. Lutz testified below that errors were recognized in the legal description in the easement in 2001 and were the subject matter ofcorrespondence and proposed revisions. CP at 140. In neither Ms. Buffington's lawsuit northis action did the parties have occasion to litigate whether the Lutzes were entitled to reform the easement or whether usage for lots 112 and 113 would be enjoined ifthe "overburden [was] slight." See 17 WASHINGTON PRACTICE, REAL ESTATE§ 2.9, at 112 (2d ed. 2004) (observing that "[i]t is supposedly a flat rule that an easementthat is appurtenant to a givenparcel ofland may not beused to serve any otherparcel" butrecognizingthat courts tend notto enjoin such use unless there would be a substantial increase in the burden on the servienttenement). As an appellate court, we do not interject and decide untried issues.
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the inability ofPPI to grantthem the easementbecause the real estate contractbetween PPI andthe Buffingtons was recorded in March 1996. The trial court did not quiettitle in Ms. Buffingtonto lot 82 free from all claims, but only "free from any claim made by any personbaseduponthat Grant ofEasement executed by [PPI] andrecorded on September 30, 1996, in Volume 340, Page 206-207, records ofKlickitat County, Washington." CP at 56. Its April 9, 2009judgment also stayedthe effectiveness ofits order quieting title for a period of90 days from the date of entry, for reasons that do not appear in ourrecord but, inferentially, anticipatedthis action to condemn a private way ofnecessity. 4 It was towardthe end ofthat 90-day period that, on June 30, 2009, the Lutzes filed this suit, seeking a private way ofnecessity along the same access thatwas earlier invalidated. As affirmative defenses to this private condemnation action, Ms. Buffington contended both thatthe Lutzes' claim was a compulsory counterclaim in her 2006 quiet title action and was barred for their failure to assert it, and thatthe Lutzes had failed to
4 Despite the narrow reliefgranted by the trial court and its 90-day stay, the dissent contends that "[t]hetrial court clearly understoodthat Ms. Buffington soughtto quiet title to lot 82 in her free from any claims ofthe Lutzes. We know this becausethe trial court itselfdeterminedthatthe Lutzes' subsequent easement-by-necessity claimwas logically related to Ms. Buffington's quiettitle action." Dissent at 3. It was former Klickitat Superior CourtJudge E. ThompsonReynolds whopresided at the quiet title action and stayed the effect ofhisjudgment. The finding ofa logical relation (butthatthe private way ofnecessity claim was not mature) was made by Judge Pro Tempore Randall Krog, to whomthe parties triedthe action before us on appeal. CP at 54, 125, 172-73, 186. 7 

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# INo. 32878-3-III Lutz v. Buffington join as necessary parties all otherPonderosa Parkproperty owners. She later moved for summaryjudgment on both grounds. The trial court denied her motion. Atthe bench trial, the Lutzes presented expert testimony thatjustcompensation for the taking ofan access easement on the northern tip ofMs. Buffington's property was $1,180. Ms. Buffingtonresisted any award ofa way ofnecessity, but also claimedthat she would have demanded close to $83,000 to convey the easementright and that the Lutzes' development ofthe road had diminished enjoyment ofherproperty. She demonstrated her diminished enjoyment with evidence that the tenants on lot 113 had been investigated for marijuanaproduction, that incidents offirearms discharged on or
near the property had been reported, that tenants on both properties were observed exceedingthe speed limit as they drove through PonderosaPark, and that the tenants had been noisy and allowed their dogs to roam freely overMs. Buffington'sproperty. Following a bench trial, the trial court enteredjudgmentin favor ofthe Lutzes, granting them an easementby private way ofnecessity across lot 82, conditioned upon theirpaying thejudgment amount within 60 days. The Lutzes timely satisfiedthe judgment. Ms. Buffington appeals. ANALYSIS The Washington State Constitution provides that "[p]rivateproperty shall not be

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# INo. 32878-3-III Lutz v. Buffington
taken for private use, except forprivate ways of necessity"5, "demonstat[ing] that a remedy for landlocked property was envisioned." Ruvalcaba v. KwangHo Baek, 175 Wn.2d 1, 6, 282 P.3d 1083 (2012). The legislature has effectuated the constitutional provision through RCW 8.24.010, under which, when "necessary for [a property's] properuse and enjoymentto have and maintain a private way ofnecessity
... over or through the land ofeach other," an owner "may condemn and take lands ofsuch other sufficient in area for the construction and maintenance ofsuch private way ofnecessity." Compensation must be paid for the property condemned for aprivate way ofnecessity and the condemnee may be awarded its reasonable attorney fees and expert witness costs. RCW 8.24.030. "Under [the] statute, the need for away ofnecessity does not have to be absolute." Ruvalcaba, 175 Wn.2d at 7 (citingBrown v. McAnally, 97 Wn.2d 360, 367, 644 P.2d 1153 (1982)). "'

### It must, however, be reasonably necessary under the facts ofthe case, as distinguished from merely convenient or advantageous.'" Id. (citations omitted) (quoting Brown, 97 Wn.2d at 367). "Additionally, 'the condemnor has the burden ofprovingthe reasonable necessity for a private way ofnecessity, including the absence of alternatives."' Id. (quotingNoble v. Safe Harbor FamilyPres. Trust, 167 Wn.2d 11, 17,

s CONST. art. I,§ 16 (emphasis added). 9No. 32878-3-III Lutz v. Buffington
216 P.3d 1007 (2009) (citing State ex rel. Carlson v. Superior Court, 107 Wash. 228, 234, 181 P. 689 (1919)). Ms. Buffington contends on appeal that (1) the Lutzes' action to condemn a private way ofnecessity was a compulsory counterclaim that should have been brought in her quiet title action, (2) the Lutzes failed tojoin otherPonderosa Park homeowners as necessary parties, (3) the trial court erred by granting a private way ofnecessity when the Lutzes had an implied easement over neighboring property, (4) it erred by granting the private way ofnecessity when the Lutzes had waited too long to bringthe private condemnation action, and (5) the trial court's award of$1,180 in compensation was insufficient. We address her arguments in turn. I. Compulsory counterclaim Counterclaims and cross claims are addressed by CR 13, which generally makes it compulsory that a pleading state, as a counterclaim, "any claim which at the time of serving the pleading the pleader has against any opposingparty, ifit arises out ofthe transaction or occurrence that is the subject matter ofthe opposing party's claim and does not require for its adjudication the presence ofthird parties ofwhomthe court cannot acquirejurisdiction." CR 13(a). The failure to plead a compulsory counterclaim will ordinarily bar a subsequent action on that claim. Schoeman v. New YorkLifeIns. Co., 106 Wn.2d 855, 863, 726 P.2d 1 (1986); Chee Chew v. Lord, 143 Wn. App. 807, 814, 10No. 32878-3-III Lutzv. Buffington
181 P.3d 25 (2008). Ms. Buffington contends that the Lutzes had and could have asserted a claim for a private way ofnecessity at the time they answered her quiet title complaint but failed to do so and are barred from bringing it in this action. In Schoeman, our Supreme Court adopted the standard for determining whether a claim "arises out ofthe same transaction or occurrence that is the subject matter ofthe opposing party's claim" within the meaning ofCR 13(a) that controls our decision. The plaintiff, Joyce Schoeman, was the wife ofGiovanni Schoeman, an artist, who had entered into an agreement underwhich Carl Zehner, through Mr. Zehner's solely-owned corporation, E.Z., Inc., would manufacture, sell, and reproduce Mr. Schoeman's works. Schoeman, 106 Wn.2d at 856. In 1977, New York Life issued a policy on the life ofMr. Schoeman, which named E.Z., Inc., as beneficiary. Id. at 857. The policy lapsed within
a year. Id. Mr. Schoeman moved to California and, according to Joyce Schoeman, ceased working for E.Z., Inc. Id. Nevertheless, in January 1979, Mr. Zehner and Mr. Schoeman applied to reinstate the policy. Id. A demand for the policy amount was made after Mr. Schoemanwas shot and killed by Dennis Miller in January 1981. During Mr. Miller's trial for murder, a witness testified thatMr. Millerboasted that someone who stood to benefit from a $100,000 insurance policy on Mr. Schoeman's life hired him to kill Mr. Schoeman. Id. In March 1982, New York Life commenced an interpleader action in which it 11No. 32878-3-III Lutzv. Buffington
named all possible claimants to the policy as defendants. The potential claimant/ defendants included Ms. Schoeman, Mr. Zehner, and E.Z., Inc. Id. While Ms. Schoeman asserted thirdparty claims against Mr. Zehner and E.Z., Inc. alleging that Mr. Zehner hired Dennis Millerto kill herhusband in orderto obtain theproceeds ofthe policy, she did not assert a counterclaim against New York Life. In 1983, New York Life moved for discharge from the interpleader action, having admitted liability onthepolicy and paid in both the policy amount and interest. No defendant objected and the discharge motion
was granted. After settling with her interpleader codefendants, Ms. Schoeman sued New York Life, alleging it was negligent in issuing the policy when it should have known thatE.Z., Inc., no longerhad an insurable interest in Mr. Schoeman's life. Id. at 858. The Schoeman court dismissed her action as barred by resjudicata and her failure to raise the claim in the interpleader action. In the course ofanalyzing whetherher claim had been a compulsory counterclaim, the court examined four existing standards for determining when a claim arises out ofa "transaction or occurrence" within the meaning ofCR 13(a). Relying on two federal decisions, it decided to adopt a broad standard under which counterclaims should be asserted when they are "logically related" to the claim, the limits ofwhich are defined by the rule's exceptions:

12No. 32878-3-III Lutz v. Buffington [C]ourts should give the phrase 'transaction or occurrence that is the subject matter' ofthe suit a broad realistic interpretation in the interest ofavoiding a multiplicity ofsuits. Subject to the exceptions, [not instantly relevant] any claim that is logically related to another claim that is being sued on is properly the basis for a compulsory counterclaim; only claims that are unrelated or are related, butwithin the exceptions, need not be pleaded. "Transaction" is a word offlexible meaning. Itmay comprehend a series ofmany occurrences, depending not so much upon the immediateness oftheir connection as upon their logical relationship. The considerations behind compulsory counterclaims include judicial economy, fairness and convenience. Ofthe four tests, the logical relationship test is the most widely recognized and it best fosters these important considerations. We find the logical relationship test applicable. Schoeman, 106 Wn.2d at 865-66 (first and second alterations in original) (quoting Rosenthalv. Fowler, 12 F.R.D. 388, 391 (S.D.N.Y. 1952); Moore v. NY Cotton Exch., 270 U.S. 593, 610, 46 S. Ct. 367, 70 L. Ed. 750 (1926)). Applying the test to the facts before it, the Schoeman court concluded that "[t]he issue as to whichparties were entitled to the insurance policy funds and whether there
was an insurancepolicy in effect at all are integrally and logically related," and "Further, all the necessary facts for a wrongful death claim against the Insurer were known to Mrs. Schoeman at the time ofthe interpleader action yet she did not raise this claim." Id. at 867.

13No. 32878-3-111 Lutzv. Buffington
The Lutzes argue that their claim for aprivate way ofnecessity was not logically related to Ms. Buffington's quiet title action, which they characterize as "narrow in respect to the issue raised and decided. Onlythe validity ofthe [grant ofeasement]
... was adjudicated in the First Case." Br. ofResp't at 6. Alternatively, they argue that their action for aprivate way ofnecessity falls within the CR 13(e) "exception"to the logical relation standard for claims that either mature or are acquired by the pleader after serving the party's pleading. RCW 7.28.010 provides the statutory authority for a quiet title action, allowing a person having an interest in real property to obtain ajudgment "quieting orremoving a cloud from plaintiffstitle." The allegations ofMs. Buffington's complaint in the quiet title action were addressed only to the cloud created by the express easement and the court quieted title only with respect to that easement. The dissent, however, points out that the prayer set forth in Ms. Buffington's complaintwas broad and from that, it concludes that Ms. Buffington's complaint "was not an academic exercise limitedto the
narrow issue ofthe enforceability ofthe September 1996 easement; rather, she sought to have ajudicial determination excluding the Lutzes from using her lot 82 for their access." Dissent at 2-3. In Hill v. Hill, 3 Wn. App. 783, 788, 477 P.2d 931 (1970), overruledon other grounds by Stokes v. Polly, 145 Wn.2d 341, 37 P.3d 1211 (2001), in which it was not 14 

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dearwhetherthe plaintiffin earlier litigation hadbeen seeking a finding ofunlawful detainer, ejectment, orpossibly otherrelief, the court observed that "[t]he burden was uponthe plaintiffto establish her claim and to make clearjustwhat it is." Where the plaintifffailed to clearly inform the court and counsel ofthe reliefshe sought, she was "deemedto have acquiesced in the court's construction and thereby to have electedto treat the action as one for unlawful detainer." Id. at 788-89. Wetherefore disagree with the dissentthatthe logical relationbetweenthe two actions is clear. We nonetheless believe that the strongerbasis on which to affirm the trial court is the Lutzes' argument that until it was determined in Ms. Buffington's quiet title action thattheir 1996 easement over lot 82 was invalid, they couldnot establishthe "reasonable necessity" requiredto privately condemn another's property. And it was only because ofthe quiettitle decisionthat Mr. Lutzthen undertook, unsuccessfully, to negotiate with Judith Cyrus for access; explored "all ofthe public andprivateroads serving properties in the area to see ifan alternative route couldbereasonably and sensibly arranged"; and, having concluded that he and his wife should seek a private way ofnecessity overMs. Buffington's ground, obtained an expert opinion onjust compensation. CP at 141. We therefore turn to the maturity exception createdby CR 13(e).

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# I**~**No. 32878-3-111 Lutz v. Buffington
Since 

### Schoeman rejected the application ofthe maturity exception to Ms. Schoeman's claim out ofhand (noting her awareness ofall necessary facts for a wrongful death claim), it provides little guidance on the scope ofthe maturity exception. Several reported Washington cases have applied the exceptionto the compulsory counterclaim rule and shed more light on its application. In 

### Chew, Mr. Chew filed a declaratoryjudgment action in Washington almost two years afterhe was sued in Nevadaby Robert Lord overpersonal injuries Mr. Lord sustained during an adult scavengerhunt. 

### Chew, 143 Wn. App. at 809. Mr. Chewhad staged the scavengerhunt, whichtookplace in Nevada. Id. Mr. Lordhad signed a waiver ofliability and assumption ofrisk form before the scavenger hunt began, and Mr. Chew had relied on the waiver in moving for summaryjudgmentinNevadathathe was contractually relieved ofliability. Well into the Nevada litigation, Mr. Chewhad also demandedthat Mr. Lord indemnify him for his litigation expenses as required by the waiver. Atthe time ofthe Washington lawsuit, theparties disputed whether Mr. Lord had denied a duty to indemnify against Mr. Chew's litigation expenses orwas only awaiting information aboutthe expenses. Itwas two days after the Nevada court denied Mr. Chew's motion for summary judgmentthat Mr. Chew filed his suit in Washington seeking, among otherrelief, enforcement ofthe agreement to indemnify. Id. at 811. The Washington trial court 16No. 32878-3-III Lutz v. Buffington
dismissed Mr. Chew's action, holding that it was a compulsory counterclaim that was required to be asserted in the Nevada action. Id. at 812. On appeal, Mr. Chewrelied onParkridgeAssociates, Ltd. v. LedcorIndustries, Inc., 113 Wn. App. 592, 54 P.3d 225 (2002), an earlier and analogous decision ofthe court, although Parkridge did not involve a compulsory counterclaim. In Parkridge, the courthad held that a claim by Ledcor, a general contractor who was suing its subcontractor, Freeman, for contractual indemnity, did not accrue until Ledcor's liability had become fixed and absolute. Underthe subcontractor indemnification agreement at issue in Parkridge, Freeman had agreed to defend, indemnify and hold Ledcorharmless from "any and all claims, demands, losses andliabilities." Id. at 604. Ledcor had been presented as early as November 1999 with a claim by Parkridge that Ledcor contended was Freeman's duty to indemnify. But it did notpay the loss to Parkridge until over a year later, in December 2000. Id. at 596. At issue for purposes of
a statute ofrepose defense was the parties' dispute over whether Ledcor had a claim for contractual indemnity ofthe Parkridge loss as early as November 1999 (Ledcor's position) ornot until December2000 (Freeman's position). The Parkridge courtheld: Generally there is a breach ofthe covenant ofindemnity and the indemnitee's right to recover accrues when the liability has become fixed and absolute. An indemnitor's liability to the indemnitee accrues when, 17 

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underthe terms and conditions ofthe contract, the covenant ofindemnity is broken. Id. at 605. The court observed that consistent with these general principles, our Supreme Court had previously held in a case involving "implied in fact" indemnity that "itis 'settled law that indemnity actions accrue when the party seeking indemnity pays or is legally adjudged obligatedto pay damages to a third party."' Id. at 601, 605 (quoting Cent. Wash. Refrigeration, Inc. v. Barbee, 133 Wn.2d 509, 517, 946 P.2d 760 (1997)). TheParkridge court saw "noreason to apply a different rule for accrual ofthe duty to indemnify under contractual indemnity," and noted that as ofthe accrual date urgedby Ledcor, "mere allegations establishedpotential, not actual, liability
.. Thus, there was no breach ofany duty to indemnify underthe subcontract's addendum as ofthat date." Id. at 605. The Chew court appliedthe "logical relation" test adopted in Schoeman in deciding whetherMr. Chew's claim was a compulsory counterclaim in the Nevada action. Itconcluded thatParkridge was not controlling onthe issue ofaccrual, because unlike in that case, Mr. Chew was contending that Mr. Lordhad a current duty to defend him-notmerely a duty to indemnify him against a future loss. Itobserved that the Parkridge courthad "focused onthe duty-to-indemnify claim and declined to discuss Ledcor's duty to defend
... notingthat 'the duty to defend and the duty to indemnify do
18No. 32878-3-111 Lutz v. Buffington

not necessarily accrue together.'" Chew, 143 Wn. App. at 815 (quotingParkridge, 113 Wn. App. at 604). 6 "Here,"the Chew court observed: Chew claims that by signingthe waiver, Lord agreed to defend and indemnify Chew in the Nevada action. Chew also claims that "Lord breached the contract by suing Mr. Chee Chew in Nevada." 

## If Chew 's claims are true, they were mature at the time Chew servedhis answer in the Nevada action. Atthat time, he hadalready incurredlegal costs associated with defending the Nevada action. 143 Wn. App. at 815-16 (emphasis added). A second case is Lane v. Skamania County, 164 Wn. App. 490, 501-02, 265 P.3d 156 (2011), which was principally concerned with whether a trial court abused its discretion in denying a motion to amend an answerunder CR 15(d) in orderto assert an after-arising counterclaim. Since the trial court's refusal to allow the amendment was based on undue delay and unfair surprise, a key dispute was over when the after-arising counterclaim-aclaim for the wrongful filing ofa lis pendens-matured. The relevant dates were as follows:
• In March 2003 the Lanes, petitioned under LUPA7to enjoin their neighbors, the L'Hommedieus, from installing a second septic system ontheirproperty in alleged violation ofa restrictive covenant;

6 The Parkridge court also recognized that a contention by Ledcor that Freeman had an earlier-accruing duty to defend would present a different issue, butrefused to address it, stating, "Ledcor does not argue on appeal the duty to defend claim." 113 Wn. App. at 604. 7 The Land Use PetitionAct, chapter 36.70C RCW. 19No. 32878-3-III Lutz v. Buffington

• The L'Hommedieus were granted partial summaryjudgment, an appeal was taken, and the appellate court reversed, finding material facts were in dispute;
• Afterremand, in June 2006, the Lanes recorded a lis pendens against the L'Hommedieus' property;
• Atthe conclusion ofa February 2007 bench trial, the trial court again found that the restrictive covenant did not apply to the L'Hommedieus' property and awarded attorney fees; • A second appeal was taken in which the court reversed the fee award but affirmed the conclusionthat the covenant did not apply to the L'Hommedieus;
• On January 12, 2010, the appellate court issuedthe mandate in the second appeal; and
• On January 21, 2010, the L'Hommedieus moved in the trial court under CR 13(e) to supplement their pleadings to assert the wrongful filing ofa lis pendens. Id. at 493-95. The court recognized that CR 13(e) applied by its plain language, since the L'Hommedieus filed their answer before the Lanes filed the lis pendens. Id. at 496-97. In connection with the controlling dispute over whetherthe January 2010 motion to amend was unduly late, the L'Hommedieus maintainedthattheir claim for wrongful filing ofthe lis pendens did not accrue until after the mandate in the second appeal was issued in 2010. Id. at 495. TheLane court disagreed, explaining: The bases ofthe L'Hommedieus' counterclaim came into existence in 2006 (or shortly thereafter), whenthe Lanes [recorded] the lis pendens and were not dependent on the outcome ofthe main action tried after remand from this court in 2005. As in Chew, only the L'Hommedieus' 20No. 32878-3-III Lutzv. Buffington right to recover on their counterclaim, i.e., their status as the prevailing party, awaited the main action's outcome. 

### Id. at 501. The teaching ofSchoeman, Chew and Lane is that a cause ofaction is not mature until all ofits elements are capable ofbeing asserted andprovedby the plaintiff. To prevail on a claim ofprivate way ofnecessity, the Lutzes had to establish that the private way sought was reasonably necessary. Ruvalcaba, 175 Wn.2d at 7. InDreger v. Sullivan, 46 Wn.2d 36, 38-40, 278 P.2d 647 (1955) our Supreme Court held that where it would appear thatplaintiffs seeking to condemn a private way ofnecessity had another legal right ofaccess and it was only "amere admeasurement ofconvenience and expense" thatprompted their effort to obtain a different access, the plaintiffs had not established necessity for a means ofingress and egress overthe defendant's property: Unless and until it is establishedthat the route overthe Copenhaver property ... is not available to them, the plaintiffs cannot sustain the burden ofproofthat the route across the Sullivanproperty ... is even "reasonably necessary" for the properuse and enjoyment oftheirproperty.
Ms. Buffington argues, however, that a federal treatise relied on by the courts in Chew andLane supports an even more narrow application ofthe CR 13(e) exception and would exclude the Lutzes' claim. She relies on the following language and particularly
on the language we highlight:
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This exception to the compulsory counterclaim requirement necessarily encompasses a claim that depends upon the outcome ofsome other lawsuit and thus does not come into existence until the action upon which it is basedhas terminated
.... However, a counterclaim willnotbe denied treatmentas a compulsory counterclaim solely because recovery on itdepends on the outcome of the main action. This approach seems sound when the counterclaim is basedonpre-action events andonly the right to relief depends upon the outcome of the main action. Br. ofAppellant at 12-13 (Emphasis omitted) (Emphasis added) (footnotes omitted) (quoting 6 CHARLES ALAN WRIGHT, ARTHURR. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL§ 1411, at 82-84 (2d ed. 1990). This discussion by the treatise is also cited by Chew, 143 Wn. App. at 814 andLane, 164 Wn. App. at 498-99 (citing Chew). When § 1411 is read in its entirety, the highlighted language is abstruse, since the treatise includes examples ofcounterclaims that are not compulsoryprecisely because recovery on them depends onthe outcome ofthe main action. The discussion by the treatise that Ms. Buffington omits with her ellipses, states: For example, a claim for malicious prosecution cannotbe a compulsory counterclaim in the allegedly wrongfully prosecuted action, and a claim for contribution cannotbe compulsory in the action whosejudgment is the subject ofthe contribution suit. 6 CHARLES ALAN WRIGHT, ARTHURR. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1411, at 82-83 (2d ed. 1990) (footnotes omitted).

22No. 32878-3-111 Lutzv. Buffington Representative ofthe cases cited by the treatise in which malicious prosecution
was held not to be a compulsory counterclaim is Bose Corp. v. Consumers Union ofUS., Inc., 384 F. Supp. 600 (D. Mass. 1974). The Bose court held that a defendant's counterclaim thatthe action against it constitutes malicious prosecution "is premature; the defendant must, and cannot, allege a favorable termination ofthis suit ifit is to proceed on a theory ofmalicious prosecution." Id. at 603. A contribution case cited by the treatise, Slavics v. Wood, 36 F.R.D. 47 (E.D. Pa. 1964) holds that "[a] claim for contribution can only arise after trial andjudgmentagainst the defendants," and, since "Rule 13 has no provision which accelerates an unmatured claim, therefore a claim for contribution which is contingentcannot be the subject ofa counterclaim." Since the treatise recognizes that counterclaims are sometimes treated as unmatured where recovery depends upon the outcome ofthe main action, its use ofthe word "solely" in the statement onwhich Ms. Buffingtonrelies is clearly important ("[A] counterclaim will not be denied treatment as a compulsory counterclaim solelybecause recovery on it depends upon the outcome ofthe main action, [however]."). WRIGHTET AL., supra,§ 1411, at 83-84 (1990) (emphasis added). 

### It requires that we examine the
cases cited as authority for thatproposition in orderto determine whatmakes them different. The treatise cites two cases as authority. Interphoto Corp. v. Minolta Corp., 47 23No. 32878-3-111 Lutz v. Buffington
F.R.D. 341 (S.D.N.Y. 1969) was evidently the original source ofthe proposition. See Springs v. FirstNat. Bankof CutBank, 835 F.2d 1293, 1296 (9th Cir. 1988) (describing the Wright treatise as "cit[ing] the Interphoto rationale with approval"). InInterphoto, the plaintiff, a distributor for Minolta Corporation, sued it for antitrust violations, contending that Minoltahadthreatened to terminate its distributorship. Interphoto alleged that the threatened termination was in retaliation for its refusal to go along with Minolta's and others' antitrust conspiracy. 47 F.R.D. at 342- 43. Interphoto made a successful threshold showing ofthe illegal conspiracy, obtaining a preliminary injunction restraining Minolta from cutting offsales to Interphoto. Id. at 343. Minoltathereafter amended its answer to assert, by counterclaim, that it was contractually entitled to terminate Interphoto's distributorship and obtain the return ofits inventory. 

### It sought to enforce Interphoto's inventory return obligations, which it contended were being breached. Id. Interphoto moved to dismiss the counterclaim based in part on its argument that "the existence ofMinolta's counterclaim depends upon its successfully defending the main action." Id. CR 13(e) was at issue inInterphoto in its affirmative context ofproviding a basis for apermissive counterclaim, not in the negative "exception" context ofdefining the limits ofwhat is compulsory under CR 13(a). Either context entails an identical inquiry into whether a claim has "matured or was acquired by the [party] after serving [an earlier] 24 

## INo. 32878-3-III Lutz v. Buffington pleading." CR 13(e). But in its affirmative context, CR 13(e) provides only that the answering party may assert the counterclaim, not that it is required to. Minolta wanted to assert the counterclaim and was prepared to prove its contractual right to a return ofits inventory. While its recovery would "depend on the outcome ofthe main action," WRIGHT ET AL., supra,§ 1411, at 84, it depended on facts that, while not yetproved, Minolta intended to prove. It did not depend on ajudicial outcome that Minolta did not seekbutthat mightbe foisted upon it. The other case cited by the treatise as support for the proposition that "[a] counterclaim will not be denied treatment as a compulsory counterclaim solely because recovery on it depends on the outcome ofthe main action," id. at 83-84, is Springs, 835 F.2d 1293. The plaintiffin Springs had been sued for foreclosure ofa trust indenture entered into when he refinanced his home. Id. at 1295. He defaulted but later appeared and moved to set aside the defaultjudgment. His motion was denied. Springs then commenced a tort action against his lender, asserting that the bank had been negligent in allowing an Internal Revenue Service tax lien to take priority over its trust indenture and had acted in bad faith by purchasing his home at the sheriffs sale for less than fair market value. Id. The district court found thatboth ofSprings' claims
were compulsory counterclaims in the foreclosure action and granted summaryjudgment. On appeal, the Ninth Circuit made an important distinction between the negligence 25No. 32878-3-111 Lutzv. Buffington
and bad faith claims. It observedthat the negligent act ofthe bank "occurred at the time the second trust indenture was executed. Thus, Springs' claim matured priorto the Bank's foreclosure action." Id. at 1296. Citing lnterphoto and the Wrighttreatise, the court held that "having failed to raise the negligence claim during the foreclosure proceeding, Springs is barred from asserting it in this action." Id. It affirmed dismissal ofthe bad faith claim as well, but on a distinguishable basis. Implicitly recognizing that the bad faith claim did not mature until the foreclosure sale, the Ninth Circuitheld that
resjudicatabarredthe bad faith claim because Springs had been given the opportunity to raise it during the motion to set aside the defaultjudgmentbut failed to do so. Id. The only other case cited by the treatise in which a counterclaim was deemed compulsory even though it depended upon the outcome ofthe main action (although with the signal "but compare") is Simkins Industries, Inc. v. Fuld & Co., Division of Metropolitan Greetings, Inc., 392 F. Supp. 126 (E.D. Pa. 1975). In that case, Fuld was sued for amounts owed on account by Simkins, and Simkins used the occasionto serve writs ofattachment on 26 ofFuld's obligors. Fuld responded with a multimillion dollar counterclaim for malicious prosecution based on the allegedly wrongful attachments. Id. at 128. Simkins movedto dismiss the counterclaim, in part on the basis that its main action had notbeen terminated in favor ofFuld. Id. The court agreed that 26No. 32878-3-III Lutz v. Buffington [i]fFuld's counterclaim is interpreted as a damage claim for malicious use ofprocess, then it would appearthat the claim is premature and pleaded in violation ofFed. R. Civ. P. 13(a). A plaintiffl,]
... ifhe is to maintain an action for malicious use ofprocess under Pennsylvania laws, must allege and prove, inter alia, that the main action has terminated favorably to him. Fuld cannotpossibly make the required allegation in the counterclaim because the main action in which it is a defendant is still pending. Id. at 129 (footnote omitted) (citations omitted). Atthe same time, the court observed that the common law tort ofabuse ofprocess does notrequire that the main action first be terminated. Id. at 130. Since it found the averments ofthe complaint somewhat unclear, it granted the motion to dismiss butwith leave to amend "if[Fuld] believes the facts warrant its doing so." Id. What distinguishes the cases identified by the Wright treatise as presenting counterclaims that were compulsory even though dependent upon the outcome ofthe main action is that each involved claims that were both logically related to, and not inconsistent with, the defendants' position in the main action. Minoltawould not recover
on its counterclaim in Interphoto unless it established a valid distributorship agreement that had been breached, butthere was no reason why it could not pursue that claim in the main action-andit wantedto. Springs would not recover on his counterclaim for the bank's negligence in closing his refinancing but again, there was no reason why that claim could not be asserted at the time ofthe foreclosure action. Fuld would not recover for abuse ofprocess withoutproving its elements, but (unlike its malicious prosecution 27No. 32878-3-III Lutz v. Buffington claim) there was no reason it could notbe pursued in response to Simkins' collection action. In all three cases, then, the "sole" fact that recovery on the claim in the main action depended uponproving the claim did notprevent it from being mature. Here, by contrast, a claim for a private way ofnecessity in Ms. Buffington's action would be diametrically inconsistent with the Lutzes' position in that action. 

### It would tend to be disproved by their evidence and argumentthat they had a valid express easement. There was a clearreason why the Lutzes would notpursue such a claim until and unless their express easementright was invalidated. Cf Taylor v. Bell, 185 Wn. App. 270, 284, 340 P.3d 951 (2014), review denied, 183 Wn.2d 1012, 352 P.3d 188 (2015) (recognizing that ifa party's position is rejected by a court, it is notjudicially estoppedto rely upon the court's determination in pursuing a different claim thereafter). Accordingly, this was not a case in which the "sole"reason for refusing to treat the Lutzes' counterclaim as compulsory was because they would have to prevail in the main action to recover. The additional reason was that the claim would have been wholly inconsistent with the legal position they were taking in the main action and they understandably would not assert it. The facts ofthis case do not fall within the proposition relied on by Ms. Buffington.

28No. 32878-3-III Lutz v. Buffington
II Necessity of addingneighboringproperty owners Ms. Buffington next argues that the trial court should have dismissed the Lutzes' action for failure tojoin, as parties, the other homeowners in Ponderosa Park. She contends they were necessary parties because the Lutzes must travel overprivate roads within the development that exist by virtue ofeasements across the homeowners' properties. Unless the Lutzes' can prove access to herproperty, she argues, they cannot establish a private way ofnecessity over it. "CR 19 requiresjoinder ofa party with an interest relating to the subject ofthe action where disposition in the party's absence may impairthe party's ability to protect its interest in the litigation." Eugster v. City of Spokane, 139 Wn. App. 21, 30, 156 P.3d 912 (2007). A necessary party is [a] person who is subjectto a service ofprocess and whosejoinderwill not deprive the court of jurisdiction overthe subject matter ofthe action
... if (1) in [his] absence complete reliefcannot be accorded among those already parties, or (2) [he] claims an interest relating to the subject ofthe action as is so situated that the disposition ofthe action in [his] absence may (A) as a practical matter, impair or impede [his] ability to protect that interest or (B) leave any ofthe persons already [a party] subjectto a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of[his] claimed interest. CR 19(a). CR l9(a) ensures thatparties will bejoined ifneeded for ajust adjudication. Crosby v. County of Spokane, 137 Wn.2d 296, 306-07, 971 P.2d 32 (1999). Ms. Buffington cites Brown, in whichpassing mention is made ofthe fact that the 29 

# f 

# I 

# I INo. 32878-3-111 Lutzv. Buffington
Browns-theparties seeking a private way ofnecessity over a private road-hadjoined "othernecessary parties
... including corporations having utilities along the western onefourth mile" ofthe road. 97 Wn.2d at 365. The Browns sought an unusual private way ofnecessity: a 50-foot easementto serve theirproposed residential development that they had agreed to transferto the county to serve as a public road. In expectation ofreceiving the road the county required, and the court awarded to the Browns, the right "to locate public and private utilities," "toregulate approaches," and to "regulate uses inconsistent with the use ofthe right ofway ... ifit were to become a county road." Id. at 369. The need tojoincorporations having utilities along the private road was not a contested issue
on appeal. The Washington Supreme Court reversed the trial court's award ofthe private way ofnecessity, refusing to countenance an end run around different and more onerous proof required for public condemnation ofprivate property, holdingthat "the owner of landlockedproperty is only authorized to condemn land for his
... own needs and use, and is not authorized to condemn land for another or for some other use." Id. at 372. Unlike the Browns, the Lutzes were not seeking a private way ofnecessity over property in which owners otherthan Ms. Buffington had an interest. They already had an easementto cross the private roads in Ponderosa Park, obtained in September 1996 from PPL Relying on the easement, they built a road in October 1996 that they had used for 30No. 32878-3-III Lutz v. Buffington
almost 13 years before commencing this action in June 2009. While Ms. Buffington questions the validity ofthe easement, otherproperty owners have not soughtto invalidate it. Ms. Buffington was unquestionably entitledto present evidence and argue that the Lutzes' asserted easementrights overthe private roads in Ponderosa Park were invalid, thereby detracting from theirreasonable necessity for a private right ofway overthe northern tip ofher land. Butthe court could, and evidently did, find her evidence and argument ofinvalidity unpersuasive. She has not challengedthe sufficiency ofthe evidence to supportthe court's explicit finding offact 19 that "[f]rom 1996 until the present ... no individual owners ofproperties in Ponderosa Park, except Plaintiff Buffington, have taken any actions, legal or otherwise, in an attemptto prevent Lutz and Lutz tenants from using the roads in PonderosaPark." CP at 180-81. She has not

, challengedthe sufficiency ofthe evidence to supportthe trial court's implicit finding that

the Lutzes appear to enjoy the right to use the private roads. The Lutzes sought only a route across Ms. Buffington'sproperty in which other property owners have no interest. The otherproperty owners are not bound by the trial court's decision in the action below, to which they were notparties. The trial court correctly concluded thatthe otherproperty owners were not needed for ajust adjudication and did not need to bejoined as parties. 31 

# INo. 32878-3-III Lutz v. Buffington
Ill. Whether availability to the Lutzes of an impliedeasement barredtheir action Ms. Buffington next contends that the Lutzes should not have been awarded a private way ofnecessity because they already enjoyed an implied easement over land to the east ofthe Lutzes, owned by Judith Cyrus. The trial court found that the Lutzes had acquired lots 110 and 112 from the Brokaws, that the Brokaws had sold to Judith Cyrus, and that Ms. Cyrus had developed private roads within herproperty. Ms. Buffington argues that these findings show that the Lutzes enjoyed an implied easement. Br. of Appellant at 21-22. Whether other access to landlocked property exists weighs heavily against the showing ofreasonable necessity. Roberts v. Smith, 41 Wn. App. 861, 862, 707 P.2d 143 (1985). Thus, the existence ofan implied easement over the property ofthe petitioner's grantor can be fatal to an action for a private way ofnecessity. Id. Once a defendant produces some evidence that an implied easement exists, the plaintiffsburden of showing reasonable necessity includes the burden ofestablishing the absence ofan implied easement access. Id. "Ifsuch an easementwere implied, plaintiffs would carry the burden ofproofby showingthatthe implied easement over [the] grantor's land was unreasonable or prohibitively expensive." Id. at 865.

32 

# INo. 32878-3-III Lutzv. Buffington
The factors relevant to establishing an implied easement, either by grant or reservation, are (1) when there has been unity oftitle and subsequent separation, (2) when there has been an apparent and continuous quasi easement existing for the benefit ofone part ofthe estate to the detriment ofthe other during the unity oftitle, and (3) when there is a certain degree ofnecessity that the quasi easement exist after severance. Adams v. Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954). The first factor is essential for creation ofan implied easement. 

### Id. The presence
or absence ofthe second and third characteristics are aids in determining what is the "cardinal consideration-thepresumed intention ofthe parties as disclosedby the extent and character ofthe user, the nature ofthe property, and the relation ofthe separatedparts to each other." Id. at 505-06 (citing 3 TIFFANY, REAL PROPERTY (3d ed.) 253, 254, § 780).The trial court's conclusion oflaw 5 states, "There is no implied easement over the Brokawproperty." CP at 183. Afterreciting the three factors relevant in implying an easement, the conclusion states: While there was a former unity oftitle and subsequent separation, the parties, Lutz and Brokaw, involved in the land transfer in 1996 oflots 110 and 112 did not discuss nor contemplate an easement overthe retained Brokawproperty. There was no quasi or continuous use ofthe Brokaw property for the benefit ofplaintiffLutzproperty, i.e., lot 110 and lot 112, after severance oftitle.
33No. 32878-3-111 Lutzv. Buffington
CP at 183 (Conclusion ofLaw 5). The following findings offact provide support for the court's conclusion that no easement is implied from the Brokaw conveyance: In 1996 PlaintiffLutzpurchased lot 110 and 112 from ErnestBrokaw. E. Brokaw at the time ofthe sale owned adjacentproperty to the south and east oflot 110 and lot 112 in the southeast quarter ofsection 32 and south west quarter ofsection 33 that fronts Pipeline road. No roadway existed overBrokawproperty to access lot 110 and 112. CP at 178 (Finding ofFact 3). Attime ofclosing, PlaintiffLutz believed he had access to Lot 110, 112 and 113 from the public Pipeline Road to his parcels by an easement over EastPonderosa Road, Tamarack Road and overLot 82 based upon discussion PlaintiffLutz had with W. Kershaw, aprincipal ofPonderosa Parcels, Inc, a developer ofPonderosaPark, and an owner/member of Ponderosa Park Owners Association. CP at 178 (Finding ofFact 4). 8 Atthe time ofpurchasing lot 110 and lot 112, PlaintiffLutz did not discuss with Brokaw an easement overthe remaining Brokawproperty for ingress and egress.

8 This finding is not inconsistent with the finding in the 2006 action that the Lutzes were on notice ofthe inability ofPPI to grantthem an easementbecause ofthe recording ofthe real estate purchase contract and the covenants, conditions, and restrictions for Ponderosa Park. The Lutzes had constructive notice by virtue ofthe recorded documents. See Strong v. Clark, 56 Wn.2d 230, 232, 352 P.2d 183 (1960) ("When an instrument involving real property is properly recorded, it becomes notice to all the world ofits contents."). The finding that they were subjectively unaware ofthe inability ofPPI to grant an easement is not assigned errorby Ms. Buffington and is supported by substantial evidence. 34No. 32878-3-III Lutzv. Buffington
CP at 178 (Finding ofFact 5). PlaintiffLutz believed he had a valid easement to access to his property by using the public Pipeline Road to EastPonderosaRoad to Tamarack Road and over lot 82. CP at 178 (Finding ofFact 5). PlaintiffLutz did not ever use the Brokawproperty to access lots 110 and 112, instead only accessing those properties from 1996 forward by traversing from the public Pipeline Road to E. Ponderosa Road to TamarackRoad to Lutz Parkway which is the [sic] located overthe north tip oflot 82 and the property requested to be condemned. CP at 179 (Finding ofFact 11). From 1996 to 2009, PlaintiffLutz had paid dues commensurate with members ofPonderosa Park Owners Association. CP at 180 (Finding ofFact 19). "Wherethe trial court has weighedthe evidence ourreview is limited to determining whetherthe findings are supported by substantial evidence and, ifso, whetherthe findings in tum supportthe trial court's conclusions oflaw andjudgment." Hollandv. Boeing Co., 90 Wn.2d 384, 390, 583 P.2d 621 (1978). We do not reweigh evidence or reassess witness credibility. In re Welfare of XT, 174 Wn. App. 733, 737, 300 P.3d 824 (2013). Questions oflaw and conclusions oflaw are reviewed de novo. Sunnyside Valley lrrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003). Under RAP 10.3(g),
35No. 32878-3-III Lutz v. Buffington [a] separate assignment oferror for each finding offact a party contends was improperly made must be included with reference to the finding by number. The appellate court will only review a claimed error which is included in an assignment oferror or clearly disclosed in the associated issue pertaining thereto. Ms. Buffington has not assigned errorto any ofthe findings offact that we have identified as supporting the trial court's legal conclusion. They are therefore verities on appeal. State v. Williams, 96 Wn.2d 215, 220, 634 P.2d 868 (1981) (citingRileyv. Rhay, 76 Wn.2d 32, 33, 454 P.2d 820 (1969)). Instead, Ms. Buffingtonpresents an ostensible syllogism: because the trial court concludedthat she establishedthe essential unity and separation element9 and that the Lutzes' property is landlocked, 10 and because Washington decisions hold that intent to create an implied easement is implied when a grantor sells landlocked property,11 it follows necessarily that the intent is implied in the case ofthe Brokaws' conveyance to the Lutzes. She proceeds from a flawed premise that intent to create an easement is implied

9 See CP at 183 (Conclusion ofLaw 5) (stating in part, "[T]here was a former unity oftitle and subsequent separation"). 10 As evidenced by their action seeking a right ofway by necessity and the court's conclusion oflaw 4 (stating in part, "The invalidated easement in 2009
... over the north tip oflot 82 resulted in lot[s] 110, 112 and 113 being landlocked with no valid means of ingress or egress"). CP at 183. 11 Citing Carlson, 107 Wash. at 232.36 

# INo. 32878-3-111 Lutz v. Buffington
whenever a grantor conveys property that proves to be landlocked, whether or not the parties believedthat to be true at the time. She relies on the statement in Carlson that [w]hen D.J. Davis sold a part ofhis land to the petitioner, an easement or way ofnecessity was implied in the grant. This was the rule ofthe common law. Ithas been followed almost, ifnot quite, universally in other states, and has never been questioned in this state. Carlson, 107 Wash. at 232. Carlson discloses, however, that the petitioner, C.H. Davis, "[s]ome seven years ago ...bought a tract often acres from his father, D.J. Davis. The tract was landlocked
.... Petitionerhas improved his land, and for the sevenyears of his ownership has maintaineda way over the lands of hisfather." Id. at 229 (emphasis added). Itis apparent in Carlson that the petitioner and his father contemplated use of
access ofthe father's land from the time ofthe conveyance. Other Washington decisions make clear what Carlson had no occasion to address: that since the presumed intention ofthe parties is the prime factor in determining whether
an easement by implication has been created, an easement will not be impliedifevidence indicates that the grantor never intended to impose a servitude on his retained property in favor ofthe property conveyed. InRogers v. Cation, 9 Wn.2d 369, 115 P.2d 702 (1941), the petitioners sought to establish an implied easementto use water from a spring located on an adjoining upstream property. Prior unity oftitle and separation was clear; both properties had been
37No. 32878-3-111 Lutzv. Buffington
under common ownership until divided in settling an estate, with a son taking one parcel and a daughter taking the other. Id. at 372. The petitioners were the successors to ownership ofthe downstream parcel and had relied for years on water drawn from the upstream parcel butwere unable to establish adverse possession. Their alternative claim ofan implied easement was rejected on appeal because the evidence showedthat upon separation oftitle, waterhadbeen available on and was drawn from the downstream parcel itself. Accordingly, the petitioners "did not meet the burden ofshowing that there
was such an adaptation and use ofthe land before it was divided as to indicate that [the original grantor] or his heirs intendedto impose apermanent servitude upon one part ofit in favor ofthe other." Id. at 379; accord, Granite Beach Holdings, LLCv. Dep 't of NaturalRes., 103 Wn. App. 186, 196, 11 P.3d 847 (2000) ("Necessity must exist at the date the common parcel is severed."). Here, the trial court found credible Mr. Lutz's testimony that the parties believed the Lutzes were acquiring complete easement access in September 1996, when PPI conveyed lots 110 and 112. The testimony finds support in the 1996 documents purporting to grant easementrights; the fact that the Brokaws did not expressly grant easement rights to the Lutzes; the fact that in later conveying to Ms. Cyrus, the Brokaws did not identify easement rights in the Lutzes as an exception from title; and the Lutzes'

38 

# INo. 32878-3-III Lutz v. Buffington
continuous and exclusive reliance for access on Lutz Parkway rather than on any route
overthe adjoining Brokaw/Cyrus land. Ms. Buffington also argues that the court erred in relying for its conclusionthat no easementwas implied on the fact that no road providing access to lots 110 and 112 existed overthe Brokawproperty at the time those lots were sold to the Lutzes. She points to Washington decisions holding that easements can be implied despite no preexisting quasi easement. Br. ofAppellant at 22-24. Butthose decisions only affirm that whetherthere was a quasi easement existing for the benefit ofone part ofthe estate to the detriment ofthe other during the unity oftitle is relevant to presumed intent, but is not necessary. The trial court treated the nonexistence ofa quasi easement as relevant, not necessary. Ms. Buffington demonstrates no error in the trial court's conclusion that no implied easementwas shown. IV Whether the Lutzes' claimfor aprivate wayof necessity is unreasonably tardy Ms. Buffington next contends that the Lutzes delayed too long in making their claim, relying on our Supreme Court's decision in Ruvalcaba, 175 Wn.2d 1, in which the courtheld that the Ruvalcabas' claim for a private way ofnecessity was an abuse ofthe

39No. 32878-3-III Lutzv. Buffington private necessity doctrine given the Ruvalcabas' responsibility for their landlocked situation and their decades' long delay in seekingto acquire access over others' land. The Ruvalcabas voluntarily landlockedtheir ownparcel in 1971 by selling property thatprovided its access to apublic throroughfare without reserving an easement. Id. at 4. Thirty-five years later, afterthe Ruvalcabas found outthattheirparcel was suitable for a home site, they sought a private way ofnecessity. The Washington Supreme Court refused to adopt a bright-line rule thatno one who voluntarily landlocks his or her own property can gain the benefit ofprivate condemnation under RCW 8.24.010. Id. at 7. But approaching the case with the "overridingpublic policy goal against making landlockedproperty useless" in mind, the courtheld that "no reasonable finder offact could find that there was reasonable necessity" on the facts before the court. Id. at 8.

Id. The Ruvalcabas are essentially turning our statedpublic policy goal on its head. They are making a sophisticated, yet convoluted legal argument regarding financial impracticability to manufacture a cloud ontitle
. . . This strategy was also employed approximately 35 years after the Ruvalcabas voluntarily landlocked their own parcel. Such a flagrant abuse ofthe reasonable necessity doctrine will not be tolerated because it erodes the protections for private property found in article I, section 16 ofthe Washington Constitution.

40No. 32878-3-111 Lutz v. Buffington
Ms. Buffingtonpoints to the fact that the Lutzes purchased lots 110 and 112 in 1996 and waited until 2009 to commence the action. But this case is nothing like Ruvalcaba. The relevant voluntary affirmative act ofthe Lutzes was to negotiate for and acquire what they believedwas legal access at the time they acquired lots 110 and 112. And Ms. Buffingtonherselfsuffered the Lutzes to build the roadway in 1996 and use it until the eve ofthe running ofthe limitations period for adverse possession in 2006. Nothing about the Lutzes' actions abused the reasonable necessity doctrine. V. Insufficient compensation Finally, Ms. Buffington contends that the trial court's award ofcompensation for the taking ofher property was insufficient. The trial court awarded Ms. Buffington a total of$12,430 as compensation and damages. She does not appeal the $11,250 awarded as severance damages but only the $1, 180 awarded for the taking. She contends that the testimony ofthe Lutzes' expert, Eric Walker, did not amount to substantial evidence, and thatno reasonable person would have adopted Mr. Walker's approach. Br. ofAppellant at 32-35. No property may be taken under eminent domain withoutjustcompensation. CONST. art. I,§ 16; RCW 8.24.030. "'Just compensation is the fair market value ofthe property, taking into consideration as part ofthe property such improvements as have become permanently affixed thereto, measured as ofthe date oftrial."' Shields v. 41No. 32878-3-III Lutzv. Buffington Garrison, 91 Wn. App. 381, 385, 957 P.2d 805 (1998) (quoting State v. Wilson, 6 Wn. App. 443, 447, 493 P.2d 1252 (1972)). "'Fairmarket value is the amount ofmoney which a well informed purchaser, willing but not obliged to buy the property wouldpay, and which a well informed seller, willing but not obligedto sell it would accept, taking into consideration all uses to which the property is adapted and might in reason be applied."' Id. (quoting Wilson, 6 Wn. App. at 447). Just compensation "mustbe calculated from the standpoint ofwhatthe property
owner loses by having his property taken, not by the benefit whichthe property may be to the condemnor." Lange v. State, 86 Wn.2d 585, 589, 547 P.2d 282 (1976). "Itis well established that the condemnee is entitled to be put in the same position monetarily as he would have occupied had his property not been taken." Id. "'While the owner is forced to sell, he is notto receive by reason ofthat fact a lesser amountthan the property would fairly bring upon the market.'" Id. (quoting Chelan Elec. Co. v. Perry, 148 Wash. 353, 358, 268 P. 1040 (1928)). "The trier offact has discretion to award damages in an amount falling within the range ofre-Ievant evidence." Shields, 91 Wn. App. at 386 (citing Mason v. Mortg. Am., Inc., 114 Wn.2d 842, 850, 792 P.2d 142 (1990)). A trial court's award ofcompensation will not be disturbed on appeal ifthe amount is within the range ofsubstantial evidence in the record. Id. 42No. 32878-3-111 Lutzv. Buffington
Mr. Walkertestified that in arriving at an opinion onjustcompensation, he determined the value ofMs. Buffington's parcel before and afterthe imposition ofa private way ofnecessity. In determining the "before"value, he relied onthe sales comparison approach, identifying comparableproperties thathe adjusted for their differences from Ms. Buffington's property. Report ofProceedings (Walker) (RP (Walker)) at 16. He arrived at a "before" value for herproperty of$75,000. Mr. Walker testified to two possible approaches to determining the "after"value ofMs. Buffington's property. One, the more qualitative ofthe two, looks to how the marketwouldview the property withthe implied easement. Applying this approach, he testified, "[Y]oureally have the samething. You could still put in a home site in there. You still have close to [5]-4.9, something very, very close to five acres that's unencumbered by this easement." Id. at 18. Underthe second approach, which he called the "taking and damages" approach, "whatyou try to do is to develop a unit valueper square foot for whatthe before situation was." Id. at 19. Mr. Walker explained thatunderthis second approach, he decided to value the "taking" as ifthe Lutzes were acquiring 100 percent ofthe land area encumbered by the easement. To reach a value for that .08 acre parcel, Mr. Walkerbegan with the $75,000 "before" fair marketvalue ofthe entire parcel, determined an aliquot value per square foot of$0.35, and calculated the value ofthe taking by multiplyingthepriceper square 43 

# INo. 32878-3-III Lutzv. Buffington
foot by the number ofsquare feet taken (3,370). The product, and thereby his opinion as to the compensation value, was $1, 180. For her part, Ms. Buffington contended that ifshe were negotiating for the sale of the portion ofherproperty on which the Lutzes sought an implied easement, she would ask for "a sumjust less than $83,000." CP at 181. She did not call an expertto testify. In making its award, the trial court explained in its conclusions oflaw that it engaged in a "mixed approach." Id. at 185. To Mr. Walker's method for calculating a "100 [percent] taking" ofthe easement area, it added a calculation ofseverance damages to compensate Ms. Buffington for her diminished enjoyment ofthe servientparcel. Id. Measuring the severance damages as 15 percent ofMr. Walker's "before"value of $75,000, the trial court found the "appropriate amount ofthe taking as $1180 and damages as $11250." Id. at 186. Since the amount awarded is within the range ofthe evidence presentedto the trial court, we ordinarily would not disturb it. Ms. Buffington nonetheless argues that no substantial evidence supported Mr. Walker's opinion, pointing to the fact that while Mr. Walkerrelied on the comparable sales approach, he conceded on cross-examinationthat he had not identified any sales ofcomparable easements. RP (Walker) at 40. Butwhile conceding thathe had not identified easement sales for comparison, Mr. Walker added,

44 

# INo. 32878-3-III Lutz v. Buffington "[W]e're not valuing the easement. We'revaluingthe value impact on Lot 82, not the value ofthe easement." Id. at 40-41. Ms. Buffington offers only conclusory argument for her contention that short ofa market from which comparable easement sales could be identified, Mr. Walker's testimony does not amount to substantial evidence. She cites to no legal authority. "Where no authorities are cited in support ofa proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none." DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). As Mr. Walker explained, he relied on a comparable sales approach as the basis for a reliable "before"value ofthe property, not as a basis for placing a value on a purchase or sale ofan easement. His "before" and "after" methodology was a rational basis for calculating "whatthe property owner loses by having his property taken," within the meaning ofLange. 12 Lange, 86 Wn.2d at 589. Since Ms. Buffingtonprovides no authority otherwise, we do not considerthis argument further. See RAP 10.3(a)(6)
12 Forthe first time in her reply brief, Ms. Buffington contends thatthe court erred by not including the cost ofthe road in the compensation award, citing Shields, 91 Wn. App. at 387. Reply Br. at 19. In Shields, it was the party whose property was being privately condemnedthat had builtthe road, and it was being partially reimbursed for its own investment. Here, Ms. Buffington is asking to be compensated for the cost ofthe improvement by the very party that made and paid for the improvement. In any event, we will not consider an argumentraised for the first time in a reply brief. In re Marriage of Sacco, 114 Wn.2d 1, 5, 784 P.2d 1266 (1990).
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# l No. 32878-3-III Lutz v. Buffington (providing that a briefshould contain not only argumentbut also citations to legal authority). Attorney fees Ms. Buffington asks that she be awarded attorney fees on appeal. In a condemnation action, a trial court has discretion to grant an award for attorney fees in light ofthe circumstances in each case. Beckman v. Wilcox, 96 Wn. App. 355, 367, 979 P.2d 890 (1999). RCW 8.24.030 gives the trial court discretion "withoutregard to whetherthe condemnee has prevailed in the action or on any particular issue," Sorenson v. Czinger, 70 Wn. App. 270, 279, 852 P.2d 1134 (1993), reflecting a recognition that condemnees are, through no fault oftheir own, involuntarily drawn into such actions. The Lutzes argue that we should deny or reduce Ms. Buffington's request for fees, contending that her defense strategy "has been, from the outset, to increase the cost of this litigation," andpointing to our authority to"'consider a condemnee's actions'" including"'actions during the course ofthe case to increase the cost oflitigation.'" Br. ofResp't at 41-42 (emphasis omitted) (quotingNoble, 167 Wn.2d at 23). We exercise our discretion to award attorney fees to Ms. Buffington, but reduced for arguments that unnecessarily increasedthe cost ofappeal. Her argumentbased on delay is frivolous, and other ofher arguments necessarily fail when the proper standard of 46 

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review is applied. A reduction ofher otherwise reasonable fees and costs by 30 percent is appropriate. We affirm thejudgment quieting title to the Lutzes and award Ms. Buffington fees and costs on appeal to the extent indicated, subject to compliance with RAP 18.1. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

I CONCUR:

47 

# I32878-3-111 LAWRENCE-BERREY, J. (dissenting)- I disagree with the majority's determination that Tom and Karen Lutzes' easement-by-necessity claim was not a compulsory counterclaim. I also disagree with the majority's determinationthat the Lutzes' easement-by-necessity claim was not mature for purposes ofCR 13(e). Disagreement alone does notprompt my dissent. I dissentbecause the new rule announced by the majority concerning CR 13(e) is inconsistent withLane v. Skamania County, 164 Wn. App. 490, 265 PJd 156 (2011) and Chew v. Lord, 143 Wn. App. 807, 181 PJd 25 (2008), and is inconsistent with the policy behind compulsory counterclaims
as announced by Schoeman v. New YorkLife Insurance Co., 106 Wn.2d 855, 726 P.2d 1 (1986). 1. Standardof Review: DeNovo Compulsory counterclaims are governed by CR 13. "We review the interpretation ofcourt rules, a matter oflaw, de novo." Lane, 164 Wn. App. at 496 (citingBurtv. Dep 't of Corr., 168 Wn.2d 828, 832, 231 PJd 191 (2010)). 2. The Lutzes 'presentaction was a compulsory counterclaim Generally, a failure to plead a compulsory counterclaim will bar a subsequent action onthat claim. Schoeman, 106 Wn.2d at 863; Chew, 143 Wn. App. at 814. ANo. 32878-3-111 Lutzv. Buffington
claim is compulsory if"it arises out ofthe transaction or occurrence that is the subject matter ofthe opposing party's claim and does not require for its adjudicationthe presence ofthirdparties ofwhomthe court cannot acquirejurisdiction." CR 13(a). Schoeman is the leading case in this state discussing compulsory counterclaims. Schoeman adopts the broadest offour competingtests for determining whether a counterclaim is compulsory. The broadtest adopted bySchoeman simply asks "whether the claim and counterclaim are logically related." 106 Wn.2d at 865. The reason Schoeman adopted the broadest ofthe possible four tests is because it best fosters the considerations behind compulsory counterclaims, which include 'judicial economy, fairness and convenience." Id. at 866. The majority states: "The allegations of[Lisa] Buffington's complaint in the quiet title action were addressed only to the cloud created by the express easement." Majority at 14. I disagree. Ms. Buffington's simple two-page complaint is entitled "ComplaintTo Quiet Title." Clerk's Papers (CP) at 40. 

### It asks for an order "quieting title in [lot 82 in her]freefrom any claims of[theLutzes]"; and then repeats, "plaintiffprays for an order quieting title in [lot 82] in her free of all claims made by [the Lutzes]." CP at41 (emphasis added). "An action to quiet title allows a person in peaceablepossession
... ofreal property to compel others who assert a hostile right or claimto come forward and assert theirright orclaim and submit it tojudicial determination." Kobza v. Tripp, 105 Wn. App. 90, 95, 18 P.3d 621 (2001). Understood in its propercontext, Ms. Buffington's
2No. 32878-3-111 Lutz v. Buffington
action to quiet title was not an academic exercise limited to the narrow issue ofthe enforceability ofthe September 1996 easement; rather, she soughtto have ajudicial determination excluding the Lutzes from using her lot 82 for their access. The majority quotes Hillv. Hill, 3 Wn. App. 783, 788, 477 P.2d 931 (1970) for the proposition that "[ w]herethe plaintifffail[s] to clearly inform the court and counsel ofthe reliefshe [seeks], she [is] 'deemedto have acquiesced in the court's construction and thereby to have elected to treat the action as one for [a more narrow remedy]."' Majority at 14. This case is clearly distinguishable from Hill. Here, Ms. Buffington could not have been clearer as to the reliefshe sought. The title ofher complaint, the cause of action listed, and the remedy she sought clearly requested the trial courtto quiet title to lot 82 in her "free from anyclaims of[the Lutzes]." CP at 41 (emphasis added). The
mere fact that the trial court did not quiet title, but instead narrowly invalidated the easement, was because the Lutzes did not allege any right to use the easement otherthan the express easement. The narrowness ofthe reliefgrantedby the trial court does not
mean that the trial court misunderstood the reliefsoughtby Ms. Buffington in her quiet title action. The trial court clearly understood that Ms. Buffington soughtto quiet title to . lot 82 in her free from any claim ofthe Lutzes. We know this because the trial court itselfdetermined that the Lutzes' subsequent easement-by-necessity claim was logically related to Ms. Buffington's quiet title action, and therefore was a compulsory counterclaim. I would affirm the trial court's determination in this regard, and hold that the Lutzes' easement-by-necessity claim was a compulsory counterclaim.
3No. 32878-3-III 

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3. CR 13(e) 's exception to the requirement for asserting compulsory counterclaims does notapply here The Lutzes argue that CR 13(e) provides an exception to the compulsory counterclaim rule underthe facts ofthis case. CR 13(e) provides: "A claim which either matured or was acquired by the pleader after serving the pleading may, with the permission ofthe court, be presented as a counterclaimby supplemental pleading." By its plainterms, CR 13(e) allows parties, with courtpermission, to add claims which matured or were acquired during the litigation to be litigated in conjunction with the existing claims. Ostensibly, ifa claim was not acquired or did not mature until 

### after the existing claims were litigated, then it may be litigated separately. Only a couple of
cases in Washington have discussed whether a claim matured after the existing claims
were litigated. Both cases concluded that the claims maturedpriorto the existing claims being litigated, and therefore were barred from further assertion. The first ofthese two cases is 

### Chew. There, RobertLord brought suit in Nevada against the owner ofa mine and others for personal injuries he sustained in the mine during a scavengerhunt. 

### Chew, 143 Wn. App. at 809. One ofthe defendants was Chee Chew, who staged the game. 

### Id. Aftertwo years oflitigation, Mr. Chew demanded that Mr. Lord indemnify him for his litigation expenses, as required by an agreement signed by Mr. Lordpriorto participating in the scavengerhunt. Id. at 810. Mr. Chew filed a summaryjudgmentmotion in the Nevada action, seeking enforcement ofthis agreement. 

### Id. at 811. The Nevada court denied Mr. Chew's motion. 

### Id. Two days later, Mr. Chew

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filed suit in Washington seeking, among other relief, enforcement ofthe agreementto indemnify. Id. The Washingtontrial court dismissed Mr. Chew's action, holdingthat it
was a compulsory counterclaimthat was required to be brought in the Nevada action. Id. at 812.On appeal, the Chew court determined that the counterclaim was compulsory and analyzed whetherthe facts fit into the CR 13(e) exception. Id. at 815. In discussing CR 13(e), the Chew court quoted a federal treatise discussing Federal Rule ofCivil Procedure 13(e): This [exception] is derived from the language in the rule limiting its application to claims thepleader has "at the time of serving thepleading." A counterclaim acquired by defendant afterhe has answered will not be considered compulsory, even ifit arises out ofthe same transaction as does plaintiffs claim
.... This exception to the compulsory counterclaimrequirement necessarily encompasses a claim that depends upon the outcome ofsome other lawsuit and thus does not come into existence until the action upon which it is based has terminated
.... However, a counterclaim willnotbe deniedtreatmentas a compulsory counterclaim solely because recovery on itdepends on the outcome of the main action. This approach seems sound when the counterclaim is basedonpre-action events andonly the right to relief depends upon the outcome of the main action. Id. at 814-15 (alterations in original) (quoting 6 CHARLES ALAN WRIGHT, ARTHURR. MILLER &MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1411, at 81-84 (2d ed. 1990) (the treatise). The Chew court heldthatthe CR 13(e) exception did not apply because Mr. Chew had a right to enforce the indemnification agreement at the time Mr. Chew served his answer in the Nevadaproceeding. Id. at 816.

5No. 32878-3-III Lutz v. Buffington
The second case is Lane. In March 2003, the Lanes petitioned for review under the Land Use Petition Act, chapter 36.70C RCW, to enforce a restrictive covenant and to permanently enjoin the L'Hommedieus from installing a second septic system on their property. Lane, 164 Wn. App. at 493. The trial court granted a temporary restraining order, and then apreliminary injunction enjoining further work on the septic system. Later, the trial court granted partial summaryjudgmentin favor ofthe L'Hommedieus and quashed the preliminary injunction, holding that a restrictive covenantwas not enforceable against them. 

### Id. The Court ofAppeals reversed and remanded because material issues offact existed. 

### Id. at 494. After remand, in 2006, the Lanes recorded a lis pendens against the L'Hommedieus' property. 

### Id. At trial, the L'Hommedieus argued that they were entitledto damages and attorney fees for the wrongfully issued injunction, but did not ask for damages for the wrongfully recorded lis pendens. 

### Id. The matter went to trial in 2007, and the decision was appealed. 

### Id. In 2009, the second appeal affirmed the trial court's conclusion that the covenant did not apply to the defendant, but reversed the trial court's award ofattorney fees. 

### Id. at 494-95. Abouttwo weeks after the 2010 appellate mandate, the L'Hommedieus moved to supplementtheir pleadings under CR 13(e) to assert a counterclaim for damages from the wrongfully recorded lis pendens. 

### Id. The L'Hommedieus maintainedthattheir claim for damages did not arise until after the 2010 mandate when they finally prevailed. 

### Id. at 495. The Lane court disagreed. The court explained:

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The bases ofthe L'Hommedieus' counterclaim came into existence in 2006 (or shortly thereafter), whenthe Lanes [recorded] the lis pendens and were not dependent on the outcome ofthe main actiontried after remand from this court in 2005. As in Chew, only the L'Hommedieus' right to recover onthe counterclaim, i.e., their status as the prevailingparty, awaitedthe main action's outcome.[!] Thus, the L'Hommedieus' counterclaim matured in 2006 whenthe Lanes [recorded] the lis pendens or shortly thereafter, well before the trial in 2007andwell before they moved to assert it afterthe 2007 trial, the entry of judgment, and this court's mandate in 2010. The claim thattheir counterclaim did not mature until after ourmandate issued in 2010 fails. Id. at 501. We learn from Chew andLane that a determination ofwhetherthe CR 13(e) exception applies depends onwhetherthe facts necessary to assert the counterclaimwere in existence atthe time when a counterclaim couldhave been filed. We further learnthat the counterclaim will notbe denied treatment as a compulsory counterclaimmerely because the right to relief depends upon the outcome of the main action. This is the rule in the treatise quoted by Chew. See Chew, 143 Wn. App. at 814-15 (quoting 6 WRIGHT, supra,§ 1411, at 81-84). This rule was applied both byLane and Chew in determining that the counterclaims were not within CR 13(e)'s exception. The majority notes that some cases cited in the treatise follow the rule, whereas others do not. The majority thenpicks three early cases and attempts to harmonizethem. In doing so, the majority announces a new rule not announced in the treatise nor anywhere in this country. The majority's newrule allows a party to file a claim ifthe

1Lane's description ofclaim maturity is inconsistent. As acknowledgedbyLane, the right to reliefdepended onthe outcome ofthe main action.
7No. 32878-3-111 Lutzv. Buffington

new claim is inconsistentwith a claim or defense the party asserted in a previous action. Ratherthan attempting to harmonize three early cases, I wouldreturn to the policy behind compulsory counterclaims as set forth by our Supreme Court in Schoeman, 106 Wn.2d 855. Thepolicy behind compulsory counterclaims includes 'judicial economy, fairness and convenience." Id. at 866. This policy is best effectuatedby adopting a narrow exceptionto CR 13(e), such as the exception noted in the treatise, and applied byLane and Chew. CR 8(e)(2) permits a party to assert claims in the alternative, even ifthe claims are mutually inconsistent. By doing so, the rule encourages all claims that couldbe litigated in one actionto be conclusively litigated. The majority, by allowing a party to hold back
an inconsistent claim for later litigation encourages claim splitting. Claim splitting is inconsistent withthe purpose ofcompulsory counterclaims. See Schoeman, 106 Wn.2d at 864 ("A liberal and broad construction ofRule 13(a) is appropriate to avoid a multiplicity ofsuits."). I would hold that a counterclaim will notbe deniedtreatment as a compulsory counterclaim merely because entitlement to reliefdepends onthe outcome of the main action. Ifwe were to apply this rule here, the Lutzes wouldhave beenrequired to assert an easement-by-necessity counterclaim a decade ago, thus saving theparties and the courts substantial resources, both in time and money. Application ofthe above rule best effectuatesjudicial economy, fairness, and convenience.

8No. 32878-3-111 Lutzv. Buffington
4. The Lutzes' easement-by-necessity claim was mature in 2006 In 2006, when the Lutzes answered Ms. Buffington's original complaint, the publicly recorded instruments established that Ponderosa Pines, Inc. did not own lot 82 in late 1996 when it attempted to convey an express easement across that lot to the Lutzes. The Lutzes thus should have known that they had no legal access to theirproperty. See Strong 

### v. Clark, 56 Wn.2d 230, 232, 352 P.2d 183 (1960) ("When an instrument involving real property is properly recorded, it becomes notice to all the world ofits contents."). The majority's determination that the Lutzes' claim was not mature because they did not know that theirproperty was landlocked until afterthe first action ended, is inconsistent with the facts publicly available in 2006. Instead, the Lutzes should have known in 2006 that they had no legal access across lot 82 and should have asserted their easement-by-necessity claim. The need to interpose the claimwas obvious in 2006. Forthe reasons expressed above, I dissent.

Lawrence-Berrey, 

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