### INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON
REGINALD K. WREN and BRENDA A. WREN, husband and wife, Respondents,

v.
TAMMY S. BLAKEY, an unmarried 

### person, and FLYINGTRANCH, INC., a Washington corporation, Appellants. No. 70691-8-1 DIVISION ONE UNPUBLISHED OPINION



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### Trickey, J. — To establish adverse possession, the claimant must show 

## that possession is exclusive, actual and uninterrupted, open and notorious, and hostile. Here, theappellants failed toestablish that each ofthose elementswere 

## presentforthe prescribed 10years. Thetrial courtdid noterrin quieting title in therespondents. Andbecausethecorporateform does notaffordprotectionfrom 

## personalliabilitywhenanofficercommitsatort, thetrialcourtdid noterrinfinding the appellant personally liable for treble damages as a result of her trespass. Further, because theclaim ofadverse possession was adefense to the trespass 

## claim, there was no need forthetrial courtto segregatethe attorneyfees asthe two claims were intertwined. We affirmthe trial court. FACTS 

## Reginald and Brenda Wren (Wren) and Tammy Blakey and the Flying T Ranch, Inc. (collectively, Blakey) own adjacentpropertyinArlington, Washington. Wren sued Blakeyfortrespass andquiettitle. Blakeycounterclaimed, contendingNo. 70691-8-1/2 

### that she was entitled to the property by adverse possession. The trial court 

### concluded that Blakey failed to prove the elements of adverse possession and quieted titled in Wren, awarding him damages and attorney fees under the trespass statute. RCW 4.24.630. 

### Atthe time Wren purchased the property, a hedgerow measuring from 50 

### to 70 feet wide separated the properties.1 Sincethe 1930s, afence, hidden by the hedgerow, marked the boundary ofthe property. 

### Blakey acquired the property from a sheriff's sale in 1989 and took 

### possession in 1990 after the right of redemption had passed.2 Edwin Tannis owned the Blakey property previously.3 Wren acquired the adjacent property in 2004 from Robert and Winnie 

### Rollins (Rollins) through a statutory warranty deed.4 In 1983, Rollins acquired the 

### property from Charles and Glenice Kroeze (Kroeze).5 Kroeze acquired the propertyfrom his motherin 1964.6 Tannis, Kroeze, and Rollins all testified that each farmed the parcel up to 

### the edge ofthe hedgerowwiththe actualareaofcultivationofeither parcel dictated bythewidth of the hedgerow at thetime.7 All three testified that the boundaryline was straight and coincided with the historicfence.8

1Report ofProceedings (RP) at 62. 2RP at 236, 409. 3 RP at 237. 4RP at 56; Exhibit (Ex.) 39; Clerk's Papers at 84, Findings of Fact (FF) 2. 5CP at 84-85, FF 3; Ex. 40. 6CP at 85, FF 4; Ex. 40. 7CP at 88, FF 13 (undisputed). 8Ex. 40; RP at 238, 465.No. 70691-8-1/3 Blakey testified that in 1990 she used a backhoe to clear out some of the 

### bramble. Inso doing, she accidentallypulled out someofthefence.9 She repaired


### some of the posts in the fence line.10 The hedgerow grew back. In2009, Blakey employed Andy Floe to install a fence on the property line. 

### Floe approached Wren to establish the boundary line because he was having 

### trouble locating the property line.11 Wren showed Floe the survey from the propertywhich was done in2004 whenWren purchased the property. Thatsurvey 

### showed the boundary line between the properties to be a straight line.12 The survey showed steel T-posts and a few wooden posts every 100 feet along the 

### propertyline.13 The survey marker had been placed there by Richard Ross, Delta Land Surveyors, who surveyed the property in 2004 prior to the Wren purchase.14 A few weeks later, Floe demolished the hedgerow and began installing a 

### barbed wire fence in the now denuded area.15 Wren stopped Floe, telling him he 

### was in the wrong place.16 Blakey then told Wren that this was where she had installed the 1990 fence and that the property was hers by adverse possession.17 Blakeyordered Floe to continue, telling Wren to sue her.18

9 RP at 423. 10RP at 420. 11 RP at 65. 12RP at 65. 13RP at 66. 14RP at 66-67. 15RP at 71 16 RP at 70-71. 17 RP at 72; CP at 89, FF 16 (unchallenged). 18RP at 72.No. 70691-8-1/4 

### After Blakey installed the fence, Wren hired a surveyor, William Lloyd.19 That survey clearly shows that the fence Blakey installed was located west ofthe boundary line between the two properties, ranging from 0.00 feet at the southerly 

### end to 49.35 feet west ofthe boundary line at the northerly end.20 Blakey asserts that the fence was on the western side of her property and thatthe fence she installed in 2009 was the same as the one in 1990.21 However, this testimony is contradicted by Kroeze, Rollins, and Tannis, all ofwhom testified 

### thatthe boundarywas a straight linebetween the properties.22 Wren also presented evidence from Terry Curtis, a photogrammetry 

### expert.23 Curtis's stereoscopic aerial photographs supported the witnesses' 

### testimony that the boundary between the two properties was a straight line.24 Blakey, in addition to her own testimony, presented testimony from Gerald 

### Painter, a professional land surveyor who was currently the owner of a flying 

### school where Blakey kept her plane.25 However, Painter did not look at the property orconduct a survey himself.26 The court found that the property line was clearly established and further 

### that Blakey had failed to establish adverse possession.27 The court found that the hedgerow had grown back since 1990 so there was no established use of the

19RP at 133-34. 20Ex. 6. 21 RP at 429, 435. 22 RP at 238, 465 23RP at 153-54. 24 RP at 160, 174. 25 RP at 334. 26 RP at 340, 383. 27 CP at 8 (Memorandum Decision, p. 3).No. 70691-8-1/5 

### property and thus the installation of the barbed wire fence in 2009 was a 

### trespass.28 The court awarded damages for the cost of additional feed Wren had to 

### purchase because the barbed wire fence prevented Wren from pasturing his horses.29 The court also included costs for the installation of a wooden fence to 

### replace the barbed wirefence. The court trebled damages under RCW4.24.630, 

### the intentional trespass statute.30 Treble damages amounted to $40,398.75.31 The court also awarded costs and attorney fees. 

### Blakey appeals, arguing the court erred in quieting title in Wren and dismissing her claim foradverse possession and awarding attorney fees. Blakey also appeals the court's attorney fee award. ANALYSIS Adverse Possession 

### Blakeychallengesthetrial court's findings that her activitieson the disputed land did not constitute adverse possession because they were neither open and notorious nor hostile. 

### Adverse possession presents questions of both law and fact. The trier of fact determineswhetherthe essentialfacts exist, and the courtdetermineswhether 

### those facts constitute adverse possession. Anderson v. Hudak. 80 Wn. App. 398, 

### 401-02, 907 P.2d 305 (1995). On appeal, this court reviews the determination of

28 CP at 9 (Memorandum Decision, p. 4). 29 CP at 11 (Memorandum Decision, p. 6). 30 CP at 9 (Memorandum Decision, p. 4). 31 CP at 12 (Memorandum Decision, p. 7).No. 70691-8-1/6 adverse possession de novo but defers to thefactual findings made attrial. Bryant
v. PalmerCoking Coal Co.. 86 Wn. App. 204, 210, 936 P.2d 1163 (1997). When the trial court enters findings of fact and conclusions of law, our review is limited to determining whether those findings of fact are supported by substantial evidence and ifthe findings of fact support the conclusions of law. Douglas v. Visser. 173 Wn. App. 823, 829, 295 P.3d 800 (2013). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the declared premises. Douglas, 173 Wn. App. at 829. We view the evidence and reasonable inferences in the light most favorable to the prevailing party. Top Line Builders, Inc. v. Bovenkamp, 179 Wn. App. 794, 803, 320 P.3d 130 (2014) (citing Jensen v. Lake Jane Estates, 165 Wn. App. 100, 104, 267 P.3d 435(2011)). To successfully establish an adverse possession claim, a claimant must possess the property for at least 10 years in a manner that is "'(1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.'" Gorman v. City of Woodinville. 175 Wn.2d 68, 71, 283 P.3d 1082 (2012) (quoting ITT Ravonier. Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989)). Title vests 

### automatically in a claimant who satisfies all ofthese elements throughout the 10- yearperiod. Gorman, 175 Wn.2d at 72. The burden ofestablishing each element is on the party claiming to have adversely possessed the property. Anderson, 80 Wn. App. at 401. 

### Adverse possession occurs if a party uses property "'as if itwere his own, 

### entirely disregards the claims ofothers, asks permission from nobody, and usesNo. 70691-8-1/7 

### the property under a claim ofright.'" Standing Rock Homeowners Ass'n v. Misich, 106Wn. App. 231, 239, 23 P.3d 520 (2001) (quoting Granite Beach Holdings. LLC
v. Dep't of Natural Res.. 103 Wn. App. 186, 200, 11 P.3d 847 (2000)). Ifthe land at issue is vacant, open, unenclosed, and unimproved, we presume that the use is permissive. Standing Rock Homeowners Ass'n. 106 Wn. App. at 239. The ultimate test is whether the adverse possessor exercised such dominion overthe 

### land thatthe legal owner should have recognized thatthe adverse possessorwas treating the land as would its true owner. ITTRayonier, Inc., 112 Wn.2d at 759. Wren introduced a survey from Cascade Surveying & Engineering, Inc., which clearly shows that the fence installed by Blakey veered off the straight 

### property line.32 Wren also submitted multiple aerial photographs attested to by Terry Curtis, a photogrammetry expert. Curtis supplied the courtwith photographs taken from 1976 through 2009. Curtis presented a 1983 photograph inwhich the fence posts were stereoscopically discernible. From that information, he drew a line through the fence posts supporting the previous owners' testimony that the 

### historicfence linewas a straight line.33 Rollins testified that he had rented a portion of the Blakey property to 

### provide feed for his cows.34 Aerial photographs showed the hedgerow to be a consistent straight line on the Wren side, while the hedgerow on the Blakey 

### property continued to expand eastward into that property.35

32 Ex. 6; RP at 143. 33 Ex. 28; RP at 160. 34 RP at 93. 35 Ex. 13, 14, 17.No. 70691-8-1/8 Blakey claims that her repairing the fence in 1990 is sufficientto satisfythe elements needed to establish adverse possession. This claim, however, is only supported by her own testimony and Gerald Painter, a surveyor, who neither 

### surveyed nor visited the property.36 Blakey provided a declaration of Robert Huey, a surveyor, who surveyed 

### the property on April 11, 2013, two months after trial,37 in her motion for reconsideration and in her brief. This survey was not before the trial court and 

### Wren objected to itsadmission under CR 59(a)(4).38 CR 59(a)(4) provides that a new trial may be granted for evidence that the party "could notwith reasonable diligence have discovered and produced attrial." See also Morinaga v. Vue. 85 Wn. App. 822, 831, 35 P.2d 637 (1997) (only newly discovered evidence not available may be considered on motion for 

### reconsideration). Blakey argues that such evidence was admissible under CR 59(g) permitting the court to open the judgment, ifentered, and take additional testimony. Blakey cites Ghaffari v. Dep't of Licensing. 62 Wn. App. 870, 875-76, 816 P.2d 66 (1991) (it is within court's discretion to consider additional evidence 

### at motion for new trial inan action tried without a jury). But, Blakey does not offer any reason as to why this evidence could not have been presented at trial. The trial courtdoes not indicate which evidence it considered otherthan the briefs ofboth parties in its orderdenying the motion for reconsideration. This court 

### has no way to know whether the court abused its discretion if it admitted the

36 RP at 340, 383. 37 CP at 27; Appellant's Br. at 19; Appellant's Reply Br. at 10, n.7. 38 CP at 34; Resp't's Br. at 23-25.

8No. 70691-8-1/9 

### evidence, particularly here, where the evidence could easily have been presented at trial. However, even the "corrected" survey line inthe Huey declaration shows 

### that the boundary line was straight and notcurved.39 Here, therewas substantial evidencethatthe propertyowners, presentand 

### former, used the land only up to the hedgerow. Blakey does not challenge finding 

### of fact 12 describing the hedgerow as 12 feet high and 70 feet wide.40 A photograph exhibit showed the fence line visible in 1983.41 Thus, it is clear that Blakey could not have exerted the requisite dominion and control required to establish adverse possession. Inconclusion, substantial evidence supports the trial court's findings of fact, which support its conclusions of law. Personal Liability 

### Blakey contends that the trial court erred infinding her personally liable, jointly and severally with Flying T Ranch, for the damages sustained by Blakey's 

### trespass upon the Wrenproperty. Blakey is the sole shareholderand president of Flying T Ranch corporation.42 The corporateform protects officersfrom personal liability unless the officer commits a tort or disregards the corporate entity. See Grayson v. Nordic ConstCo., Inc., 92 Wn.2d 548, 552-53, 599 P.2d 1271 (1979); Johnson v. HarriganPeach Land Dev. Co., 79 Wn.2d 745, 752-53, 489 P.2d 923 (1971). A corporate 

### officer's personal liability fortortious conduct can occurwithout a piercing of the

39CP at 32. 40CP at 88. 41 RPat160. 42 CP at 51; RP at 323.No. 70691-8-1/10 corporate veil. This principle was enunciated in Dodson v. Econ. Eguip. Co., 188 Wash. 340, 343, 62 P.2d 708 (1936), wherethe courtheld a corporate officer liable 

### for his active participation in conversion. 188 Wash, at 342-43. In determining personal liability, the court stated that "[t]he liability of an officer of a corporation for his own tort committed within the scope of his officialduties is the same as the liability for tort ofany other agent or servant." Dodson. 188 Wash, at 343. "Where the officer performs an act or a series of acts which would amountto conversion if he acted for himself alone, he is personally liable even though the acts were performed for the benefit of his principal and without profit to himselfpersonally." Dodson, 188 Wash at 343. Dodson has been cited favorably in several subsequent cases. HarriganPeach. 79 Wn.2d at 753 (officers liable where they participated infraudulent acts and maintained close control); State v. Ralph Williams' NW Chrysler Plymouth. Inc., 87 Wn.2d 298, 322, 553 P.2d 423 (1976) (officer personally responsible for 

### many ofthe company's unlawful acts that violated the Consumer Protection Act (CPA), chapter 19.86 RCW); Grayson. 92 Wn.2d 548, 551, 554, 599 P.2d 1271 (1979) (officer who drafted and directed the mailing of brochure containing deceptive advertising in violation ofthe CPA held liable). Blakey contends that Dodson and its progeny do not apply here because 

### the "Wrens never alleged thatBlakeyactivelyparticipatedintortiousconversion."43 This argument is not persuasive. WhenWren approached Floe to inform himthat 

### he was putting the fence in the wrong area, Blakey came and asserted that she

43 Appellant's Reply Br. at 20.

10No. 70691-8-1/11 

### had acquired the property byadverse possession.44 Becausethe trial court found
no adverse possession, Blakey's incursion onto the land amounted to a trespass in violation ofthe statute, RCW4.24.630. The statute provides that a person acts "'wrongfully ifthe person intentionally and unreasonably commits the act or acts while knowing, or having reason to know, that he or she lacks authorization to so act.'" The trial courtfound that Blakey's statementthat she owned the property by adverse possession in effect acknowledged that she did not have rightful 

### possession to the property and thus her occupation ofthat land was intentional.45 Attorney Fees Inaddition to providing an award oftreble damages for intentional trespass, RCW 4.24.630 provides forthe award ofattorneyfees. Wren submitted a detailed 

### affidavit, including the hours billed and the type of work performed. The court reviewed these records and made an adjustment. 

### Blakey argues the trial court abused its discretion by not segregating attorneyfees. Blakey contends thatWren was entitled to fees only forthatportion of his claimthat pertained to intentional trespass and not those used to defeatthe adverse possession claim. Blakey argues that Wren's claims did not involve the


### same core facts or related legal theories. But it is clearthatthe trespass occurred because ofBlakey's illegal assertion ofadverse possession. Itwas that trespass 

### thatcausedWren tobring an action to quiettitle and seekdamagesfortrespass.46

44 CP at 89, FF 16 (unchallenged). 45 CP at 10 (Memorandum Decision, p. 5). 

### 46 Blakey asserts the timbertrespass claim as an unsuccessful claim. However, before trial, Wren withdrew that claim as a basis for its action.

11No. 70691-8-1/12 A trial court is not required to segregate fees where itdetermines that the various claims are intertwined and no reasonable segregation of claims can be made. Boguch v. Landover Corp., 153 Wn. App. 595, 620, 224 P.3d 795 (2009). Where "the trial court finds the claims to be so related that no reasonable segregation of successful and unsuccessful claims can be made, there need be


### no segregation of attorney fees."47 Nor is fee segregation required "where the claims all relate to the same fact pattern, but allege different bases for recovery. Ethridge v. Hwang. 105 Wn. App. 447, 461, 20 P.3d 958 (2001). In Henslev v. Eckerhart. 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983), the plaintiffs brought a civilrights claim, raising six different conditions at a state hospital that they alleged violated their constitutional right to treatment. The trial courtfound five ofthe six conditions violated the plaintiffs' rights and awarded them attorney fees based on their total submitted hours even though one ofthe 

### claims was unsuccessful.48 Although the statute authorized fees only on successful claims, the United States Supreme Court held that some claims for reliefwill involve a common core offacts or will be based 

### on related legal theories. Much of counsel's time will be devoted 

### generallyto the litigations as a whole, making itdifficultto divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Henslev, 461 U.S. at 435. 

### Intwo cases cited by Blakey, Manna Funding. LLC v. KittitasCntv., 173 Wn. 

### App. 879, 295 P.3d 1197, review denied. 178 Wn.2d 1007 (2013) and Clausen v.

47 Hume v. Am. Disposal Co.. 124 Wn.2d 656, 673, 880 P.2d 988 (1994) (citing Pannell v. FoodServs. of Am., 61 Wn. App. 418, 447, 810 P.2d 952, 815 P.2d 812 (1991)). 48 Henslev. 461 U.S. at 428; 42 U.S.C. § 1988.

12No. 70691-8-1/13 Icicle Seafoods. Inc.. 174 Wn.2d 70, 272 P.3d 827 (2012), the court failed to segregatethe attorneyfee awards. The Manna courtremanded forfindings offact and conclusions of law noting that the billing submitted by the county specifically referred to items that specified work on claims that it did not prevail on. 173 Wn. App at 902. InClausen, the trial court reduced the award ofattorneyfees by 10 percent 

### for the time spent on claims not related to maintenance and cure.49 Icicle Seafoods, Inc. appealed, contending the court erred in segregating hours by a percentage rather than hourly records. In upholding the fee award, our Supreme Court held that reducing a fee by a percentage is permissible where, as there, the particularfacts ofthe case makethe segregation ofactual hours difficult. Clausen, 174Wn.2dat82. When Wren filed the action for trespass, Blakey countered that there was


### no trespass because of adverse possession. Because the costs ofthe litigation all stemmed from Blakey's claim of adverse possession, the trial court did not abuse its discretion in not segregating the fees. 

### Below, Blakey did notdispute the reasonableness ofthe amountofthefees awarded, onlythatthetrial court failed to segregatethosefees. Becausewe have determined that no segregation was necessary, we affirmthe trialcourt's award of fees. 

### Wren requests an award of attorney fees on appeal based on RCW 4.24.630 and RAP 18.1. "A party may recover attorney fees and costs on appeal

49174Wn.2dat81.

13No. 70691-8-1/14 when granted by applicable law." Oregon Mut. Ins. Co. v. Barton. 109 Wn. App. 405,418, 36 P.3d 1065 (2001). BecauseWren prevails on appeal, Wren is entitled
to fees and costs. Affirmed. 

# |r^ke^ *n)

WE CONCUR:


## JJ)<*£•Cf^*^ >l-^J.

14