FILED 


OCTOBER 20, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


MICHAEL POPELIER and ) No. 32090-1-111 

BERNADETTE POPELIER, husband and ) 

wife, ) 

) 

Respondents, ) 

) UNPUBLISHED OPINION 

v. ) 

) 

CAROL SAMSE, a single person, ) 

)" 

Appellant. ) 

LAWRENCE-BERREY, J. - Carol Samse appeals the trial court's detennination that 

Michael and Bernadette Popelier adversely possessed a small portion ofher property 

adjacent to the Popeliers' access easement to their property. Substantial evidence supports 

the trial court's findings which in tum support adverse possession. We therefore affinn. 

FACTS 

Before 1979, the properties now owned by Ms. Samse and the Popeliers were a 

single parcel. In 1979, the Grasshopper Short Plat was recorded and resulted in several 

lots, including the lots that are the subject ofthis dispute: lot 1, now owned by Ms. Samse 

(the Samse lot), and lot 2, now owned by the Popeliers (the Popelier lot). In 1981, a 
No. 32090-1-111 

Popelier v. Samse 

recorded triangular 50' x50' x50' access easement allowed ingress and egress access from 

Nickels Road over the Samse lot to the Popelier lot. The Popeliers' predecessor in 

interest, Frank Buell, built a flat-topped rock wall that he used as a ramp for loading cattle 

directly east ofthat easement on a portion ofthe Samse lot. 

The Popeliers purchased their lot in 1987. Ms. Samse purchased her lot in 2005. 

In 2007 or 2008, the Popeliers excavated the access easement area to extend and flatten it. 

The Popeliers also constructed a fence made offiberglass poles and electric wires around 

the area after a fire in 2009. Soon after, Ms. Samse hired New Surveying to survey and 

stake the true boundaries on her property and confirmed that the Popeliers' new fence was 

located on her lot. In October 2009, Ms. Samse hired legal counsel. Ms. Samse's 

attorney sent the Popeliers a letter asserting Ms. Samse's right and title to the boundary 

line and the property outside the access easement. In November 2010, Ms. Samse 

directed her nephew to remove the electric fence the Popeliers had constructed. In 2012, 

Ms. Samse installed a fence along the access easement which cut offthe Popeliers' access 

to the loading ramp. 

In June 2012, the Popeliers filed this action claiming trespass, disputed boundary 

line, quiet title, and adverse possession ofthe area adjacent to the access easement. This 

action proceeded to a bench trial on August 29-30, 2013. At trial, the Popeliers testified 

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No. 32090-1·II1 

Popelier v. Samse 

that a fence existed beyond the access easement when they moved to the property. Mr. 

Popelier also testified that his predecessor in interest, Mr. Buell, told him that this fence 

constituted the boundary line. Ms. Samse objected to the admission ofMr. Buell's 

statements as hearsay. The trial court admitted Mr. Buell's out-of-court statements under 

ER 803(a)(14). On cross-examination, when shown pictures ofthe access easement area 

taken prior to 1991 and after 1999, Mr. Popelier could not locate the fence. 

Neighboring property owner John Goss, who moved to Nickels Road in 1995, 

testified there was only a piece ofbarbed wire lying on the ground in the access easement 

area when he moved in and that there was no standing fence. Thomas Thompson, Ms. 

Samse's predecessor in interest who lived on lot 1 from 1998 to 2005, testified there was 

never a fence in the area near the access easement. Ms. Samse similarly testified that the 

first time she saw a fence in the access easement area was in 2009 when Mr. Popelier 

installed the fiberglass poles and electric wires. 

The Popeliers testified they used the rock wall Mr. Buell had installed as a loading 

dock from time to time and regularly used the flat area on top to park their cars, trucks, 

equipment, tractors, and boats during the 25 years that they owned their lot Additionally, 

they stated they continuously maintained the area and improved the fence lines but never 

made any changes to the loading ramp area or moved any ofthe fences. Mr. Popelier 

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No. 32090-1-111 

Popelier v. Samse 

testified he maintained the area near the claimed fence by using a weed trimmer and 

applying herbicides along the fence line to keep the weeds and brush down. Ms. Popelier 

also testified that their use ofthe loading ramp as a parking area was obvious to all the 

owners ofthe Samse lot because the use was in direct view ofthe front living room 

window ofthe home on the lot. 

Mr. Goss, who passed by the access easement frequently from 2002 until the time 

oftrial, testified that the PopeIiers infrequently parked their cars end-to-end in the access 

easement area when they were watering their yard. Mr. Thompson testified that he did 

not see the Popeliers park their vehicles outside ofthe access easement. 

The court issued a memorandum opinion on September 25, 2013, finding that the 

Popeliers prevailed on the adverse possession claim as to the area adjacent to the access 

easement, but deciding against the Popeliers as to their claims for disputed boundary line, 

trespass, and quiet title. The court stated, "The Court is left to determine rights with 

regard to the fencelboundary lines and the increased size ofthe access easement." 

Clerk's Papers (CP) at 49. The court noted, "[T]he only difficulty is in accurately 

describing" the adversely possessed area and that "[n]o testimony established an exact 

increase in the size" ofthe access easement area. CP at 55, 52. However, the court found 

that the area was marked with a yellow bucket and two different fence posts. 

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No. 32090-1-111 

Popelier v. Samse 

On October 7, 2013, Ms. Samse filed a motion for reconsideration ofthe 

memorandum opinion. The trial court heard argument on the motion on October 21 and 

denied the motion in an order filed November 18,2013. The court asked that the parties 

meet on the property to settle the boundary line. As guidance, the court stated that the 

boundary line should run from Nickels Road to Ms. Samse's fence, intersecting the 

yellow bucket. The court also stated the line could be readily determined, but in the event 

that the parties could not come to an agreement on the exact location ofthe boundary line, 

the court would go to the property and decide the line for the parties. Finally, the court 

stated it would wait to sign a final order until a decision was made. 

On October 29,2013, a week after the motion for reconsideration was heard, Ms. 

Samse's attorney sent a letter to the trial court judge along with a proposed order 

containing findings and conclusions from the reconsideration hearing. In the letter, 

counsel for Ms. Samse identified the alternatives to solving the boundary description 

issue, stating, 

Counsel for the parties will meet at the property and attempt to establish the 

area you ordered was adversely possessed as set forth in the enclosed Order. 

You stated to counsel at the presentment hearing that, ifnecessary, you will 

visit the property in order to outline the area that you determined was 

adversely possessed by Plaintiffs. In the event the parties are unable to 

determine or agree to the area set forth in the Order, this letter will confirm 

that you have schedued [sic] to visit the property on Friday, December 20, 

2013 at 2:00 p.m. 

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No. 32090-1-III 

Popelier v. Samse 

CP at 24. 

The court entered findings of fact, conclusions of law, and an order on 

November 8,2013. The court concluded, "Using Exhibit 6 and 19, the area adversely 

possessed by Plaintiffs runs in a line starting on the northerly fence line ofDefendant's 

property that would intersect the yellow bucket and white post noted in Exhibit 10 and 

end at Nickels Road." CP at 22. The court stated that the Popeliers were entitled to this 

area adjacent to the preestablished easement and used the language from the above 

conclusion to describe the property line. 

On November 14, the parties met at the property but could not decide on a 

boundary description. Ms. Samse filed a notice of appeal on November 19, 2013. The 

Popeliers responded that the November 8, 2013 order was not a final, appealable order 

because the trial court still needed to conduct a site visit and obtain a legal description of 

the adversely possessed area. 

On December 17, the court sent a letter to the parties stating that it would be 

visiting the property on December 20. On December 18, counsel for Ms. Samse sent a 

letter to the trial court stating that Ms. Samse was not ordered to appear at the proposed 

site visit and would not attend. On December 20, 2013 at 2:00 p.m., the trial court judge 

held the site visit with his bailiff, the Popeliers, the Popeliers' counsel, and a licensed 

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No. 32090-1-III 

Popelier v. Samse 

surveyor present. No one appeared on behalf ofMs. Samse. The surveyor had previously 

appeared at trial on behalfof Ms. Samse. The court gave the surveyor the boundary line 

points established in the findings and conclusions, and the surveyor provided a legal 

description. 

On February 21, 2014, the Popeliers presented the finaJjudgment and decree as 

directed by the trial court. Ms. Samse objected, arguing the trial court acted improperly 

by having ex parte communications with the Popeliers at the site visit. The trial court 

rejected the argument, explaining that Ms. Samse was invited to participate in the visit 

and declined. The trial court signed the judgment with the surveyor's legal description 

and stated the decision was final. The "Judgment and Decree Quieting Title and 

Changing Boundaries" includes the following legal description: 

BEGINNING AT A POINT ON THE NORTHERL Y BOUNDARY LINE 

OF OKANOGAN COUNTY ROAD NO. 1974 LYING 50 FEET 

NORTHEASTERL Y OF THE WEST BOUNDARY LINE OF LOT 1 OF 

GRASSHOPPER SHORT PLAT, AS PER PLAT THEREOF RECORDED 

IN BOOK 'B' OF SURVEYS, PAGE 142, UNDER OKANOGAN 

COUNTY AUDITOR'S FILE NUMBER 655927: 

THENCE NORTHWESTERLY TO THE POINT OF INTERSECTION 

WITH THE WEST BOUNDARY LINE OF LOT 1 OF SAID 

GRASSHOPPER SHORT PLAT, SAID POINT OF INTERSECTION 

BEING 50.00 FEET NORTH OF THE NORTHERLY BOUNDARY LINE 

OF OKANOGAN COUNTY ROAD NO. 1974; 

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No. 32090-1-III 

Popelier v. Samse 

THENCE NORTH ALONG THE WEST BOUNDARY LINE OF SAID 

LOT 1 FOR A DISTANCE OF 2.99 FEET; 

THENCE EASTERLY TO THE NORTHERLY BOUNDARY LINE OF 

THE OKANOGAN COUNTY ROAD NO. 1974 TO A POINT WHICH 

LIES 61.09 FEET NORTHEASTERLY OF THE POINT OF 

BEGINNING; 

THENCE SOUTHWESTERL Y ALONG THE NORTHERL Y 

BOUNDARY LINE OF OKANOGAN COUNTY ROAD NO. 1974 FOR 

A DISTANCE OF 61.09 FEET TO THE TRUE POINT OF BEGINNING. 

CP at 500-01. 

Ms. Samse filed a motion with this court to exclude any evidence taken at the site 

visit and survey ofthe area of adverse possession and also any subsequent order ofthe 

trial court confirming the survey. On May 21, 2014, a commissioner ofthis court ruled 

that the November 8,2013 order was not final or appealable and denied Ms. Samse's 

motion to restrict the appellate record. On June 20, 2014, Ms. Samse filed a motion to 

modity the commissioner's ruling, and this court denied the motion on September 12, 

2014. 

Ms. Samse appeals both the trial court's findings of fact, conclusions oflaw, and 

order from November 8, 2013 and the trial court's order denying the motion for 

reconsideration from November 18,2013. She contends (1) the trial court erred by 

fmding the Popeliers established adverse possession ofthe area adjacent to the access 

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No. 32090-1-III 

Popelier v. Samse 

easement, (2) the trial court erred in relying on inadmissible hearsay evidence to fmd that 

the Popeliers adversely possessed the same, and (3) the trial court erred in not awarding 

her attorney fees and costs because she was the substantially prevailing party and this 

court should award her attorney fees and costs on appeal under RCW 7.28.083(3). 

ANALYSIS 

"Adverse possession is a mixed question of law and fact: whether the essential 

facts exist is for the trier offact, but whether the facts constitute adverse possession is for 

the court to determine as a matter oflaw." Lloyd v. Montecucco, 83 Wn. App. 846, 853, 

924 P.2d 927 (1996). Questions of law receive de novo review. Bryant v. Palmer Coking 

Coal Co., 86 Wn. App. 204,210, 936 P.2d 1163 (1997). 

This court reviews a trial court's challenged fmdings for substantial evidence, 

which is "evidence sufficient to persuade a fair-minded person ofthe truth of the declared 

premise." Id. "The substantial evidence standard is deferential and requires the appellate 

court to view all evidence and inferences in the light most favorable to the prevailing 

party." Lewis v. Dep't o/Licensing, 157 Wn.2d 446,468, 139 P.3d 1078 (2006). The 

reviewing court must defer to the trier of fact for purposes of resolving conflicting 

testimony and evaluating the persuasiveness ofthe evidence and credibility of the 

witnesses. Boeing Co. v. Heidy, 147 Wn.2d 78,87,51 P.3d 793 (2002). Unchallenged 

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No. 32090-1-II1 

Popelier v. Samse 

findings of fact are verities on appeal. In re Estate ofJones, 152 Wn.2d 1,8,93 P.3d 147 

(2004). 

1. 	 Whether the trial court erred in finding that the Popeliers adversely possessed the 

bench-like area adjacent to the access easement 

The principal focus ofMs. Samse's arguments is a piece ofproperty, sometimes 

described in the record as a bench-like area, adjacent to the access easement that the trial 

court held the Popeliers adversely possessed. Ms. Samse argues that the Popeliers 

produced insufficient evidence that their use ofthis property was (1) uninterrupted and 

(2) open and notorious. Ms. Samse also contends the Popeliers produced insufficient 

evidence to support the trial court's determination ofthe boundary ofthis property. 

To prevail on a claim of adverse possession, the claimant must show that 

possession is "(1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and 

(4) hostile." ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). "Such 

possession must continue for a period of 10 years." Bryant, 86 Wn. App. at 209-10. The 

holder of legal title is presumed to have possession, so the burden is on the claimant to 

prove each element of adverse possession. ITT Rayonier, 112 Wn.2d at 757. The party 

claiming adverse possession must prove each element by a preponderance ofthe evidence 

to prevail. Teel v. Stading, 155 Wn. App. 390, 394,228 P.3d 1293 (2010). 

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No. 32090-I-II1 

Popelier v. Samse 

On appeal, Ms. Samse only challenges the fIrst two elements of adverse 

possessIOn. 

Actual and Uninterrupted Possession 

First, Ms. Samse argues that at most the Popeliers used the area adjacent to the 

access easement sporadically. Thus, she contends, the evidence is insuffIcient to prove 

uninterrupted possession of the area for 10 years. 

In order to establish actual and uninterrupted use ofthe property throughout the 

statutory 10-year period, a claimant must demonstrate the same type of use that a true 

owner would make ofthe property, considering its nature, character, location, and 

ordinary uses. Bryant, 86 Wn. App. at 210. 

Here, the trial court found that "[v]irtuaUy all" ofthe Popeliers' witnesses 

established that the Popeliers used the area in question for parking one or more vehicles. 

CP at 20. The court determined that these acts were regular and uninterrupted and go as 

far back as 1987 when the Popeliers fIrst bought their property. Testimony elicited at trial 

revealed that the Popeliers used the rock wall as a loading dock from time to time and 

regularly used the flat area on top to park their cars, trucks, equipment, tractors, and 

boats. Additionally, the Popeliers stated they have continuously maintained the area and 

improved the fence lines. Mr. Popelier testifIed he maintained the area near the fence by 

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No. 32090-l-Ill 

Popelier v. Samse 

using a weed trimmer and applying herbicides along the fence line to keep the weeds and 

brush down. 

The trial court also emphasized the fact that the rock wall had been on the property 

at least since 1995 when Mr. Goss purchased his property just west ofthe Popeliers. The 

court found the rock wall "is clearly visible, not natural, and definitely contrary to the 

interests of [Ms. Samse's] property upon which it is located." CP at 19. The flat area 

above the wall is where the Popeliers testified they have parked cars and other equipment 

since they moved to the property. Additionally, Mr. Thompson testified that the area near 

the easement had not changed during the time he owned lot 1 from 1998 to 2005. Thus, 

in its memorandum opinion the court stated, "With Mr. Thompson's testimony about no 

particular change in the area from the time ofhis purchase and evidence about Mr. Buell 

creating the rock wall during the period ofhis ownership, the Court fmds the increased 

area was adversely possessed for over twenty (20) years." CP at 54. 

Ms. Samse relies on numerous authorities to support her contention that the 

Popeliers' use was not continuous. These authorities are all distinguishable because in 

each case the trial record did not support a finding ofcontinuous use. Here, virtually all 

ofthe Popeliers' witnesses supported their position that they regularly parked vehicles in 

the bench-like area adjacent to the easement. Ms. Samse fails to cite any analogous case 

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No. 32090-I-II1 

Popelier v. Samse 

where courts have held that uses similar to the Popeliers' did not satisfy the continuous 

and uninterrupted use requirements. Additionally, because the property in question was a 

bench-like area above a rock wall, the Popeliers' use ofthe property for parking vehicles 

and other equipment is ofthe same character as a true owner might make ofthe property 

considering its nature and location. We conclude that substantial evidence supports the 

trial court's finding that the Popeliers' use ofthe bench-like area adjacent to the access 

easement was actual and uninterrupted. 

Open and Notorious Use 


Second, Ms. Samse contends that the Popeliers did not satisfy the open and 


notorious element of adverse possession where (I) the Popeliers' use ofthe property was 


insufficient to put her on notice ofthe adverse possession, (2) the area claimed by adverse 

possession lacked well-defined boundaries, and (3) the boundary line established by the 

court improperly includes more property than just the bench-like area above the rock wall. 

The open and notorious element is satisfied if(l) the titleholder ofthe property has 

actual notice of another party's adverse use throughout the 10-year statutory period, or 

(2) the titleholder is deemed to have constructive notice because the claimant used the 

property such that any reasonable person would have thought he owned it. Chaplin v. 

Sanders, 100 Wn.2d 853,862,676 P.2d 431 (1984). Again, the court must consider the 

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No. 32090-I-II1 

Popelier v. Samse 

nature ofthe land when deciding whether the record owner had actual or constructive 

notice. Id. at 862-63. 

Here, the Popeliers testified and the trial court found that their use ofthe benchlike area was obvious to Ms. Samse and her predecessor in interest because their parked 

vehicles could be clearly seen from Ms. Samse's front window. This testimony was 

unrefuted and supports the trial court's finding that the Popeliers' use was open and 

notorious. 

Ms. Samse next argues that the Popeliers were required to prove the boundaries 

were well defined. The trial court found, "No testimony established the exact increase in 

the size ofthe access easement area," and thus it "is difficult to accurately describe the 

area around the access easement that Plaintiffs adversely possessed." CP at 19-20. Ms. 

Samse contends that this finding precludes the trial court from concluding that the 

Popeliers proved adverse possession. 

However, "[a] boundary may be defined by the use ofthe property itself, by a 

natural feature, or by a fence." Bryant, 86 Wn. App. at 212 (footnotes omitted). 

"Adverse possession does not require establishing a clearly demarcated line." Riley v. 

Andres, 107 Wn. App. 391, 396,27 P.3d 618 (2001). Instead, "the court may project a 

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No. 32090-I-III 

Popelier v. Samse 

line between objects where it is reasonable and logical and the claimant's use ofthe land 

was open and notorious." Id. 

Here, the Popeliers testified regarding the approximate area and configurations in 

which they parked their vehicles. This testimony, aided by numerous photographs, 

allowed the trial court to approximate the area of actual and continuous use. 

Third, Ms. Samse contends the boundary line established by the court improperly 

includes more property than just the bench-like area above the rock wall. Ms. Samse cites 

Lloyd v. Montecucco, in which Division Two ofthis court upheld the trial court's 

boundary line where the adversely possessed area was located between a steep bank and 

wooded area that did not permit a fence or other clear demarcation. 83 Wn. App. at 853­

54. Ms. Samse argues that the facts ofLloyd are distinguishable from this case and, thus, 

this court should determine that the trial court's demarcation was improper. Ms. Samse 

states in her briefing, "Unlike Lloyd, there is no uncontroverted evidence that the Popeliers 

used the entire area between the yellow bucket and the posts to park vehicles." Br. of 

Appellant at 25. However, Ms. Samse misstates the Lloyd court's conclusion. The Lloyd 

court specifically stated, "[T]here is no direct evidence [that] the [claimants] actually 

possessed every square yard ofthe disputed track," yet concluded, "nonetheless ... the 

trial court's demarcation was proper." Id. at 853. The Lloyd court then stated, "Courts 

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No. 32090-I-III 

Popelier v. Samse 

may create a penumbra ofground around areas actually possessed when reasonably 

necessary to carry out the objective ofsettling boundary disputes." Id. at 853-54. 

Thus, the Lloyd court's analysis actually contradicts Ms. Samse's argument. Even 

ifthis court agreed with Ms. Samse that the Popeliers did not use every square foot ofthe 

property included in the new land description, Lloyd's penumbra analysis supports 

upholding the trial court's demarcation. The line determined by the trial court is based on 

objects shown in the photographs that were entered into evidence and generally conforms 

to the testimony regarding the area where the Popeliers parked their vehicles. This area 

includes the rock wall, which the court properly used to create a logical configuration of 

the land adversely possessed up to the access easement. 

We conclude substantial evidence supports the trial court's findings that the 

Popeliers adversely possessed the area described in the judgment. 

2. 	 Whether the trial court erred in relying on inadmissible hearsay evidence to find 

that the Popeliers adversely possessed the bench-like area 

Ms. Samse argues that the trial court erred in admitting Mr. Popelier's testimony 

concerning what his predecessor in interest, Mr. Buell, described as the boundary between 

the two lots. She argues that this error was prejudicial because the trial court relied on the 

testimony to fmd a fence once existed around the access easement area and to determine 

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No. 32090-1-I1I 

Popelier v. Samse 

the boundary ofthe adversely possessed area in the absence of any other evidence 

concerning the disputed boundary. 

Mr. Popelier testified that a fence enclosed the area adjacent to the access 

easement when he and his wife moved to the property. Mr. Popelier also testified that he 

was told by Mr. Buell that the fence around the access easement area constituted the 

boundary between the two lots. Ms. Samse objected to these statements. The court 

overruled the objection and admitted Mr. Buell's out-of-court statements under 

ER 803(a)(14). 

This court reviews admission of evidence under a hearsay exception for abuse of 

discretion. Brundridge v. Fluor Fed. Servs., 164 Wn.2d 432,450, 191 P.3d 879 (2008). 

A trial court abuses its discretion when it takes a view that no reasonable person would 

take. Id. Evidentiary error is grounds for reversal where it results in prejudice. State v. 

Neal, 144 Wn.2d 600,611,30 P.3d 1255 (2001). An error is prejudicial ifit is reasonably 

probable that had the error not occurred, the outcome ofthe trial would have been 

materially affected. Id. (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P .2d 951 

(1986)). 

It is undisputed that Mr. Popelier's testimony regarding Mr. Buell's statements is 

hearsay. ER 803(a)(14) provides a hearsay exception only for records ofdocuments 

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No. 32090-1-III 

Popelier v. Samse 

affecting an interest in property. Mr. Buell's statements to Mr. Popelier were not a record 

of a document. The trial court thus abused its discretion in admitting the testimony. 

However, this error did not prejudice Ms. Samse because the trial court did not 

rely on the hearsay evidence in reaching its conclusion that the Popeliers had adversely 

possessed the bench-like area. We note that the court's findings and conclusions on the 

adverse possession claim do not focus on any ofthe evidence related to the fence, which 

mayor may not have existed around the access easement area at various times during the 

Popeliers' ownership oftheir lot. Instead, the trial court's analysis focuses on the 

photographic evidence and the testimony ofthe Popeliers' other witnesses. Specifically, 

fmding 16 states, "Virtually all of [the Popeliers'] witnesses established that [the 

Popeliers] used the area regularly for parking one or more vehicles," and findings 25 and 

26 describe a bucket and posts that coincide with witnesses' descriptions ofthe area of 

adverse possession. CP at 20-21. 

We conclude that while the trial court abused its discretion in admitting the 

hearsay statements ofMr. Buell, this error was not prejudicial because numerous 

witnesses testified to the approximate area where the Popeliers parked their vehicles for 

over 20 years. 

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No. 32090-1-III 

Popelier v. Samse 

3. Whether the trial court erred in not awarding Ms. Samse attorney fees 

Ms. Samse argues that the trial court erred in not awarding her attorney fees and 

costs because she was the substantially prevailing party. She also seeks an award of 

attorney fees on appeal. Ms. Samse bases her claims for attorney fees on 

RCW 7.28.083(3). 

RCW 7.28.083(3) entitles the prevailing party to reasonable attorney fees and 

costs in an action asserting title to real property by adverse possession. Nevertheless, 

RCW 7.28.083 applies only to actions filed on or after July 1, 20 12. LAWS OF 20 11, ch. 

255, § 2. The Popeliers filed suit asserting title to Ms. Samse's property on June 19, 

2012. Thus, this statute does not apply to this controversy. 

4. Whether the Popeliers are entitled to attorney fees 

The Popeliers request attorney fees on appeal under CR 11, RAP 18.1, RAP 18.9, 

and RCW 4.84.185. They contend that Ms. Samse's appeal was frivolous because it 

presents no debatable issues. An appeal is frivolous if it is devoid ofmerit so that no 

reasonable possibility ofreversal exists. Alexander v. Sanford, 181 Wn. App. 135, 184­

85,325 P.3d 341 (quoting Hartford Ins. Co. v. Ohio Cas. Ins. Co., 145 Wn. App. 765, 

780, 189 P.3d 195 (2008)), review granted, 339 P.3d 634 (2014). "An action must be 

frivolous in its entirety." Ahmad v. Town ofSpringdale, 178 Wn. App. 333, 344, 314 

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No. 32090-1-III 

Popelier v. Samse 

P.3d 729 (2013), review granted bylman v. Town o/Springdale, 180 Wn.2d 1013,327 

P.3d 55 (2014). 

Considering all the evidence, we detennine that Ms. Samse's appeal was not 

frivolous in its entirety. Ms. Samse was correct that the trial court abused its discretion in 

admitting the hearsay discussion between Mr. Popelier and Mr. Buell, and she presented a 

debatable argument regarding whether such error was prejudicial. Thus, Ms. Samse's 

appeal is not devoid of merit in its entirety. We deny the Popeliers' request for attorney 

fees on appeal. 

Affinn. 

A majority of the panel has detennined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

WE CONCUR: 


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