IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ERIC DIETZE and VICTORIA SEEWALDT, husband and wife, Appellants,

JAMES V. KELLEY and ANGELA K. KELLEY, husband and wife; CHRISTINE TESCH-SPIERS; TAMARA KITTREDGE; JOHN E. FRIARS and ELVERA I. FRIARS, husband and wife; DEAN STRAIN and SHIRLEY R. STRAIN husband and wife; JP MORGAN CHASE BANK, N.A.; SCHOOL EMPLOYEES CREDIT UNION OF WASHINGTON; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR AMERICAN MORTGAGE NETWORK, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR COUNTRYWIDE BANK, FSB, Respondents, VASHON PARK DISTRICT, Defendant. No. 71098-2- DIVISION ONE UNPUBLISHED OPINION

FILED: June 8, 2015 ! CO

v^i IN.") O

Appelwick, J. — The Dietzes appeal the trial court's summary judgment order 

### dismissing their quiet title action with prejudice. The Dietzes filed a complaint against their neighbors and their neighbors' lenders seeking an easement to access their allegedly landlocked property. Five lenders were listed on the complaint, butthe Dietzes 

### served only one. The litigation proceeded and the Dietzes failed to timely serve the unserved lenders, even after receiving leave from the courtto do so. Consequently, the 

### trial court granted a motion to dismiss one ofthe unserved lenders. The trial court thenNo. 71098-2-1/2
dismissed the Dietzes' action with prejudice, becausetheirfailure to join an indispensable party constituted inexcusable neglect. The record does not supportthe legal conclusion that the named lenders were necessary and indispensable parties to this litigation. Failure to serve any them or dismissal of any ofthem did not provide a proper basis to dismiss this action with prejudice as to the defendant owners. We vacate the summary judgment order and remand for further proceedings. FACTS 

### On April 8, 2011, Eric Dietze and Victoria Seewaldt (the Dietzes) filed a quiet title 

### action. The Dietzes filed the action seeking an easement to access their allegedly 

### landlocked property in Vashon.1 The defendants named in the complaint were neighboring property owners and their lenders. The Dietzes alleged that they required
access to their property from roadways adjacent to the neighboring properties. 

### Specifically, the Dietzes claimaccessfrom a roadadjacentto properties owned byJames and Angela Kelley and Christine Tesch-Spiers. Alternatively, the Dietzes claimed access 

### across properties owned by Vashon Park District,2 Tamara Kittredge, John and Elvera Friars, and Dean and Shirley Strain.3



### 1 Specifically, the complaint sought relief for a "judgment confirming plaintiffs' easement rights in the platted rights-of-way in the Plat ofChatauqua Beach providing accessto [the Dietzes'] real property." Priorto thefiling ofthe Dietzes' action, neighboring 

### propertyowners broughttheirown actions to vacate unopened plattedstreetsthat abutted their property. The Dietzes allege that the judgments in these actions rendered their property landlocked and that they need an easementto access their properties. 2The Vashon Park District was dismissed on March 28, 2013, through an agreed 

### stipulation,because ittransferred all its interest in the property to Kittredge. 

### 3Collectively we refer to the Kelleys, Thesch-Spiers, Kitteredge, the Friars, and the Strains as the "neighboring owners."No. 71098-2-1/3
The complaint named several lenders that may have interests in the properties, because of deeds oftrust encumbering the properties. Specifically, the Dietzes named Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for American Mortgage Network (Kelley property), MERS as nominee for Countrywide Bank FSB (Kelley property), JPMorgan Chase (Chase) (Kittredge and Tesch-Spiers property), 

### School Employees Credit Union ofWashington (SECU) (Kittredge property), and Boeing Employees' Credit Union (BECU) (Friars property). The complaint sought an easement to provide the Dietzes access to their property over the previously vacated street plats 

### crossing neighboring properties. It did not seek fee simple title to any portion of the neighboring properties, nor did it seek to change the priority of any security interests currently encumbering those properties. 

### The Dietzes served the summons and complainton SECU, the Strains, the Friars, 

### Kittredge, the Kelleys, Tesch-Spiers, and Vashon Park Districtbetween April 13, 2011 and April 17, 2011. But, the Dietzes did not serve MERS, Chase, or BECU. 

### On April 4, 2013, almost two years after being served with the summons and complaint, SECU moved for summaryjudgment arguing thatthe Dietzes' lawsuit should be dismissed underCR 19(a). Itclaimed dismissalwas appropriate, becausethe lenders


### are necessary parties to a lawsuit that seeks to quiet title to the real property pledged to


### secure payment of their loans and that the lenders were not allserved. In support of its motion, SECU attached a litigation guarantee.4 The litigation guarantee lists the deeds oftrust ofthe lenders that the Dietzes named as defendants in the lawsuit, but failed to 

### 4 A litigation guarantee provides title information from public records about an 

### estate or property interest. It provides an assurance against loss to the party requesting it ifany ofthe information is incorrect.No. 71098-2-1/4 

### serve—Chase, BECU, and MERS for American MortgageNetwork Inc. and Countrywide 

### Bank. The Kelleys, Tesch-Spiers, Kittredge, the Friars, and the Strains all subsequently joined SECU's motion forsummaryjudgment. The Dietzes timely responded to the motion on April 19. They claimed that SECU 

### and the neighboring owners failed to prove that the lenders are indispensable parties. 

### They claimed that the lenders did not have an interest in the property and that the respective neighboring owners had never previously joined their lenders in their own earlier quiet title actions. The trial court declined to rule on the motion for summary judgment atthat point. On May 2, the Dietzes filed a motion for leave to effectuate service of process on 

### defendants which have not been served in this case. Without conceding thatthe lenders
were indispensable parties, the Dietzes argued thatjustice required thatthey be granted leave to effectuate service ofprocess on the lenders who were named but notyet served. Then, the Dietzes filed a supplemental response to SECU's motion for summary judgment. Rather than addressing why the lenders were not served or why the lenders
were not indispensable parties, the Dietzes argued that ifthe lenders are indispensable parties, the appropriate remedy would be to grant the motion to effectuate service of process. Alternatively, the Dietzes argued that ifthe courtdecides dismissal ofthe action is appropriate, itshould dismiss without prejudice. 

### On May 21, the trial court granted the Dietzes' motion for leave to effectuate service of process on the unserved lenders. And, it ordered that Chase, BECU, and MERS as nominee for American Mortgage Network and Countrywide be served before June 15, 2013.No. 71098-2-1/5


### The Dietzes served BECUand ChaseonJune21. They served MERSas nominee for American Mortgage Network and Countrywide on June 20. On August 13, Chase moved to dismiss the claims against it on the grounds that it was not served in compliance with the court's May 20 order. The Dietzes did not respond to the motion. The trial court entered an order granting Chase's motion to dismiss. 

### Shortly thereafter, on September 17, Kittredge and SECU moved the courtto rule 

### on their pending April 4, 2013 motion for summary judgment to dismiss the Dietzes' lawsuit for their failure to joinindispensable parties. They argued thatsummaryjudgment dismissal was appropriate, because Chase was an indispensable party and had been dismissed from the lawsuit. On September26, BECU moved to dismiss on the same grounds as Chase. While 

### BECU's motion was pending before the court,5 the court granted SECU's and the neighboring owners' motion for summaryjudgment. The courtfound that the defendant lenders named in the Dietzes' complaint were necessary parties under CR 19. It concluded thatthe Dietzes' failure to timely serve allthe lenders named inthe lawsuitwas the result of inexcusable neglect, because the Dietzes had access to the litigation guarantee and because the Dietzes named the lenders in the complaint and described their legal interests in the properties at issue. Itfound that the Dietzes failed, without excuse, to servethe lenders bythe June 15 deadline andfailed to oppose Chase's motion to dismiss. Itconcluded that, as a result, an indispensable partywas notbeforethe court



### 5The trial court latergranted BECU's motion to dismiss on October7, 2013.No. 71098-2-1/6 

### on the quiet title action. The court granted the motion for summary judgment and dismissed the lawsuit with prejudice. The Dietzes appeal. STANDARD OF REVIEW 

### This court reviews summaryjudgment orders de novo. Hadlev v. Maxwell, 144 

### Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summaryjudgment is appropriate onlywhere there are no genuine issues of material fact and the moving party is entitled tojudgment
as a matter of law. CR 56(c); Peterson v. Groves. 111 Wn. App. 306, 310, 44 P.3d 894 (2002). When considering the evidence, the court draws reasonable inferences in the 

### lightmostfavorable to the nonmoving party. Schaafv. Hiqhfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). DISCUSSION The trial court found that the lenders named in the Dietzes' complaint were necessary parties to the quiettitle action underCR 19. And, one ofthose lenders, Chase, 

### had been dismissed. The Dietzes argue that SECU and the neighboring owners failed to establish that the lenders are necessary parties. They contend that the trial court erred in granting SECU's and the neighboring owners' motion for summaryjudgment on this
basis. This court reviews a trial court's decision under CR 19 for abuse ofdiscretion, but reviews any legal conclusion underlying a CR 19 determination de novo. Gildon v. Simon Prop. Grp., Inc.. 158Wn.2d483,493,145 P.3d 1196 (2006). Acourtabuses its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. Id. at 494. An abuse ofdiscretion is found ifthe trial court relies onNo. 71098-2-1/7 

### unsupportedfacts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view ofthe law. Id. Under CR 19, a trial court undertakes a two partanalysis. ]d. First,the court must 

### determine whethera party is needed for just adjudication. ]cL; CR 19(a). CR 19(a) outlines which parties are necessary: A person who is subject to service of process and whosejoinder will not deprivethe courtofjurisdiction overthe subjectmatterofthe action shall be joined as a party inthe action if (1) in his absence complete reliefcannotbe accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (A) as a practical matter impair or impede his ability to protectthat interestor (B) leave any ofthe persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistentobligations by reason of his claimed interest. Ifhe has not been sojoined, the court shall orderthat he be made a party. Second, ifan absent party is needed but it is not possible to join the party, then the court must determine whether in "'equity and good conscience'" the action should proceed among the parties before itor should be dismissed, the absent party being thus regarded as indispensable. Gildon, 158 Wn.2d at 495 (quoting Crosby v. Spokane County. 137 Wn.2d 296, 306-07, 971 P.2d 32 (1999)); CR 19(b). The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) ifthere is prejudice, the extent to which, by protective provisions in the judgment, by shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whetherajudgmentrendered in the person's absencewill be adequate; and (4) whetherthe plaintiffwill have an adequate remedy ifthe action is dismissed for nonjoinder. Gildon, 158 Wn.2d at495.No. 71098-2-1/8


### In analyzing whethera party is a necessary or indispensable party, CR 19calls for determinations that are heavily influenced by the facts and circumstances ofindividual 

### cases, jd. The burden of proof for establishing indispensability is on the party urging dismissal, jd. 

### In granting SECU's and the neighboring owners' motion for summaryjudgment, the trial court considered the parties' briefs, declarations, and oral argument. It then
stated: 

### The court finds that the defendant lenders named in [the Dietzes'] complaint are necessary parties under CR 19. [The Dietzes'] failure to timely serve all the lenders named in the lawsuit was the result of 

### inexcusable neglect. Before filing suit, [the Dietzes] ordered and received a litigation guaranty identifying them. [The Dietzes] named them in the 

### Complaintand described theirlegal interests inthe properties atissue. [The Dietzes] sought and were granted leave to serve them by June 15, 2013. Yet [the Dietzes] failed, without excuse, to serve them by that deadline and failed, withoutexplanation to oppose JP Morgan Chase's motionto dismiss. As a consequence, an indispensable party ... is notbeforethis Court inthe present action seeking, in part, to quiet title over the Kittredge/JPMorgan Chase/Credit Union property. In defending this ruling as correct, the lenders cite to Anderson & Middleton LumberCo. v. Quinault Indian Nation for the propositions that all owners ofan interest in property are presumably indispensable parties to an action involving that property and thatthe failure to join an indispensable party requires the dismissal of a quiettitle action. 79Wn. App. 221, 228, 901 P.2d 1060 (1995), affd, 130Wn.2d 862, 929 P.2d 379 (1996)). But, Anderson is inapposite. The Anderson court held that the United States was an indispensable party in litigation regarding the subsurface rights of a piece of property in
an action to quiet title, id, at 228-29. The court stated that all owners of an interest in property are presumably indispensable parties to an action involving that property. Id.

8No. 71098-2-1/9
But, in that case, the United States was an equitable owner of an interest in the subsurface rights. kL Here, by contrast, there is no evidence in the record that the lenders are owners ofthe property, ratherthan merely secured parties. 

### Additionally, the lenders rely on Public Utility District No. 1 of Pend Oreille County
v. Inland Power & Light Company, 64 Wn.2d 122, 390 P.2d 690 (1964), for the assertion that a lender with a mortgage on a property is a necessary and indispensable party to a 

### proceeding involving that property. Inland involved an eminent domain proceeding in which a county sought to condemn all ofthe electrical properties within its boundaries. Id, at 122-23. The electrical properties belonged to Inland, a nonprofit corporation that worked to bring electricity and telephone service to the remote county. Id. The United States had provided lowinterest rate loans to Inland to fund its work. Id. The loans were 

### secured bymortgages upon Inland's properties. Id, The Inland court determined that the United States was both a necessary and indispensable party in the eminent domain action. Id. at 125. But, itmade that determination only after considering the provisions 

### inthe loan contracts and mortgages between Inland and the United States, id. at 123. It 

### opined thatthey contained numerous restraints and controls not found in a usual security transaction and said that a survey of the loan contracts and mortgages illustrated that the United States had a substantial interestinthe properties. Id. There is no evidence inthe 

### record here that any ofthe lenders held anything more than a usual security interest. The trial court's order notes that the Dietzes obtained a litigation guarantee 

### identifyingthe lenders, namedthe lenders inthe lawsuit, and identifiedtheir legal interests in the property. There is noevidencethat the lenders established an ownership interest, rather than a security interest, in the property. There is no evidence that the lendersNo. 71098-2-1/10
established that their security interest would be impaired ifthe Dietzes' easement claim
was established. The moving party, the lenders, have that burden. Gildon, 158 Wn.2d at495. Understandablythen, thetrial court's orderdid notanalyze howorwhythe lenders
are necessary parties under CR 19(a). The court appears merely to have assumed that the litigation guarantee and the naming ofthe lenders inthe complaint made the lenders 

### necessary parties. It did not. Further, itappears from the record that afterthe trial court 

### summarily concluded the lenders were necessary parties, it similarly assumed their indispensabilitywithout considering the relevantfactors under CR 19(b). The record does not establish facts that would allow the trial court to conclude 

### under CR 19 that the lenders were necessary, let alone indispensable parties. We hold that, on this record, itwas an abuse ofdiscretion for the trial court to conclude that the lenders were both necessary and indispensable parties. 

### We therefore vacate the trial court's order granting SECU's and the neighboring 

### owners' motion for summary judgment. We remand for furtherproceedings.6

WE CONCUR:
f~^£*TsC\



### 6Because we vacate the ordergranting summaryjudgment, we need notaddress the Dietzes' additional related assignments oferror.
10Dietze v. Kelley, No. 71098-2-1 Cox, J. (concurring)

- Iconcur. Iwrite separately to emphasize thatthe fact that an entity is named in a litigation guarantee does not, without more, make that entity either a necessary or indispensable party for purposes of CR 19. Because respondent lenders failed to meet their burden to establish thatthey are either necessary or indispensable parties to this action, the summaryjudgment order dismissing this action should be reversed. 

### Intheir complaintto quiettitle, the Dietzes named as defendants various lenders who hold deeds oftrust encumbering property that is at issue in this


### case. They also named various entities that are associated withthe deeds of trust. Ireferto all these entities as "lenders" for purposes ofthis discussion. It 

### appears the Dietzes named these lenders as defendants in this action because 

### they all are named in the special exceptions to a litigation guarantee dated January 25, 2011.1 

### As the majority discusses, the lenders in this case rely, in part, on Public Utility District No. 1 ofPend Oreille County v. Inland Power & Light Co. to show 

### that they are necessary andindispensable parties to thisaction.2 Thatreliance is misplaced, as the majority explains.

1Clerk's Papers at 344-68. 264 Wn.2d 122, 390 P.2d 690 (1964).No. 71098-2-1/2 

### Butthere is an additional reason whythat case does not control here. The 

### lenders fail to cite a subsequent supreme courtcase that distinguishes Inland. That case is City ofPullman, Whitman County v. Glover.3 

### There, the city of Pullman commenced an eminentdomain proceeding to condemn certain real property. The propertywas subjectto a lease in which the United States was the tenant. The City did not name the United States as a 

### defendant inthe proceeding, notwithstanding the record interest ofthe United States inthe property. The landlords, who were named as a party defendant, moved to dismiss. They did so "on the basis thatthe trial court lackedjurisdiction overthe subject matter ofthe action since the United States is an occupant ofthe land, has an 

### interest in it and is, therefore, a necessary party defendant."4 The city argued "that itseeks the land only 'subjectto the
. . . [existing] lease,' thatthegovernment's interestis notbeingdisturbed, andthatthe 

### governmentis nota necessaryparty."[5] 

### The trial court granted the landlord's motion to dismiss.6 Itdid so on the basis of Inland.7



### 373 Wn.2d 592, 592-95, 439 P.2d 975 (1968). 4 \± at 592-93. 

### 5id. at 593 (emphasis added).

7 Id.No. 71098-2-1/3 

### On appeal, the supreme court reversed. In doing so, the court stated: The interest ofthe United States [in Inland] would have been materially affected; here itwill not be.



### The lands being acquired here will be taken subjectto the 

### leasehold interestof the United States and the city of Pullman agrees that it 'will assume and fulfill all covenants under said lease 

### that are the obligations ofthe Lessors to keep and perform.' No issue exists between the city of Pullman and the United States and none can arise underthe city's petition. The interestofthe United 

### States is beingdiminishedin no respect, its interest is not being condemned. Thatbeingso, itis not entitled to compensation and 

### is nota necessarypartydefendant.^ These principles control here. Neitherthe complaintto quiettitle nor 

### anything else in this record shows any intent bythe Dietzes to adversely affect the liens ofthe deeds oftrust ofrespondent lenders. Moreover, at oral argument ofthis case before this court, the Dietzes confirmed thatthey do not challenge eitherthe validity or priority ofthe deeds oftrust that encumberthe property at issue. And they correctly conceded at oral argumentthat should they succeed in 

### quieting title to the property in this action, that propertywill remain subjectto the liens ofthe deeds oftrust ofthe lenders. In sum, there is absolutely no showing 

### here ofany adverse effect on the deeds oftrust by virtue of this action. In fact, there is no showing of any effect at all. 

### Accordingly, the lenders have failed intheir burden to show thatthey are necessary parties under CR 19. Withoutfirst establishing thatthey are 

### necessary parties, they cannot establish thatthey are also indispensable

8 Id. at 594.No. 71098-2-1/4 

### parties.9 That the Dietzes erroneously named the lenders as parties defendant in their complaint does not alter the correct analysis ofthis issue. No one disputes thatthe owners ofthe real estate at issue in this case are 

### necessary parties under CR 19. Thus, that question is not before this court. Forthese reasons, summaryjudgmentofdismissal ofthis action with 

### prejudice was improper. The lenders are neither necessary nor indispensable parties. Reversal ofthat order is warranted. 

# ^qx,J~. a^/j

9Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 494-95, 145 P.3d 1196 (2006).