### FILED OCTOBER20, 

### 2015 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, 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### UNPUBLISHED OPINION 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 easementtotheir 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 ShortPlatwas 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, aNo. 32090-1-111 Popelier 

### v. Samse
recorded triangular 50' x50' x50' access easement allowed ingress and egress access from Nickels Road overthe Samse lot to thePopelier lot. The Popeliers' predecessor in interest, FrankBuell, 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. Samsepurchased her lot in 2005. 

### In 2007 or2008, the Popeliers excavated the access easement areato extend and flatten it. ThePopeliers 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 onherproperty and confirmed that the Popeliers' new fence was located on her lot. In October 2009, Ms. Samse hired legal counsel. Ms. Samse's attorney sentthe 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 directedher nephew toremove 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 actionproceeded to a bench trial onAugust 29-30, 2013. Attrial, the Popeliers testified
2No. 32090-1·II1 Popelier 

### v. Samse
that a fence existed beyondthe access easement when they moved to the property. 

### Mr. Popelier also testifiedthat his predecessor in interest, 

### Mr. Buell, told him that this fence constitutedthe boundary line. Ms. Samse objected tothe admission of

### Mr. 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 shownpictures ofthe access easement area taken priorto 1991 and after 1999, 

### Mr. Popelier could not locate the fence. Neighboring property ownerJohn Goss, who moved to Nickels Road 

### in 1995, testified there was only a piece ofbarbed wire lying onthe ground in the access easement
area when he moved in andthat there was no standing fence. Thomas Thompson, 

### Ms. Samse'spredecessor 

### 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 testifiedthat the first time she saw a fence in the access easement area was in 2009 when 

### Mr. Popelier installedthe 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 andregularly used the flat area on top to parktheir cars, trucks, equipment, tractors, and boats during the 25 years thatthey owned their lot Additionally, they stated they continuously maintained the area and improved the fence lines butnever made any changes tothe loading ramp area ormoved any ofthe fences. 

### Mr. Popelier
3No. 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 lineto keep the weeds and brush down. Ms. Popelier also testified thattheir use ofthe loading ramp as a parking area was obvious to all the
owners ofthe Samse lotbecause the use was in direct view ofthe front living room window ofthe home onthe lot. Mr. Goss, whopassed 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. Thompsontestified thathe

### did not seethe Popeliers parktheir vehicles outside ofthe access easement. The court issued a memorandum opinion on September 25, 2013, finding thatthe Popeliers prevailed onthe adversepossession claim as to the area adjacentto the access easement, but deciding against the Popeliers as totheir claims for disputed boundary line, trespass, and quiettitle. The court stated, "The Court is leftto determine rights with regard to the fencelboundary lines andthe 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]otestimony established an exact increase in the size" ofthe access easement area. CP at 55, 52. However, the court found thatthe areawas marked with a yellow bucket and two different fence posts.


### 4No. 32090-1-111 

### Popelier v. 

### Samse
On October 7, 2013, Ms. Samse filed a motion for reconsideration ofthe memorandum opinion. The trial courtheard argument onthe 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 bereadily determined, but in the event that the parties could not cometo an agreement on the exact location ofthe boundary line, the courtwould go to the property and decide the line for the parties. Finally, the court stated itwould waitto 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 letterto the trial courtjudge 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 areayou ordered was adversely possessed as set forth inthe enclosed Order. You stated to counsel at thepresentment hearing that, ifnecessary, you will visit theproperty in order to outline the area thatyou determined was adversely possessed by Plaintiffs. In the eventtheparties are unable to determine oragree to the area set forth in the Order, this letter will confirm thatyou have schedued [sic] to visit the property on Friday, December 20, 2013 at2:00 p.m. 5No. 32090-1-III 

### Popelierv. Samse
CP at 24. The court entered findings offact, conclusions oflaw, 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 onthe northerly fence line ofDefendant's property that would intersect the yellow bucket and white post noted in Exhibit 10 and end atNickels Road." CP at 22. The court stated that the Popeliers were entitled to this
area adjacentto 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 ofappeal on November 19, 2013. The Popeliers responded that the November 8, 2013 orderwas 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. OnDecember 17, the court sent a letterto theparties stating that itwould be visiting the property on December 20. On December 18, counsel for Ms. Samse sent a letterto the trial court stating that Ms. Samse was not ordered to appear at theproposed site visit and would not attend. On December 20, 2013 at 2:00 p.m., the trial courtjudge held the site visitwith his bailiff, the Popeliers, the Popeliers' counsel, and a licensed
6No. 32090-1-III Popelier 

### v. Samse
surveyorpresent. No one appeared on behalfofMs. Samse. The surveyorhadpreviously appeared attrial onbehalfofMs. Samse. The court gave the surveyor the boundary line points established in the findings and conclusions, and the surveyorprovided a legal description. On February 21, 2014, the Popeliers presentedthe finaJjudgment and decree as directed bythe trial court. Ms. Samse objected, arguing the trial court acted improperly by having exparte communications withthe Popeliers atthe site visit. The trial court rejected the argument, explaining that Ms. Samse was invited to participate inthe visit and declined. The trial court signed thejudgmentwiththe surveyor's legal description and stated the decision was final. The "Judgment and Decree Quieting Title and Changing Boundaries" includes the following legal description: BEGINNINGATA POINT ON THENORTHERLY BOUNDARY LINE OF OKANOGAN COUNTY ROAD NO. 1974 LYING 50 FEET NORTHEASTERLY OF THE WESTBOUNDARYLINE OF LOT 1 OF GRASSHOPPER SHORT PLAT, AS PERPLATTHEREOF RECORDED IN BOOK 'B' OF SURVEYS, PAGE 142, UNDER OKANOGAN COUNTY AUDITOR'S FILENUMBER 655927: THENCENORTHWESTERLY TO THE POINT OF INTERSECTION WITH THE WESTBOUNDARYLINE OF LOT 1 OF SAID GRASSHOPPER SHORT PLAT, SAID POINT OF INTERSECTION BEING 50.00 FEETNORTH OF THENORTHERLY BOUNDARYLINE OF OKANOGAN COUNTY ROAD NO. 1974;

7No. 32090-1-III 

### Popelier v. 

### Samse
THENCE NORTH ALONG THE WEST BOUNDARYLINE OF SAID LOT 1FORA DISTANCE OF 2.99 FEET; THENCE EASTERLYTO THENORTHERLYBOUNDARYLINE OF THE OKANOGAN COUNTY ROAD NO. 1974 TO A POINT WHICH LIES 61.09 FEET NORTHEASTERLY OF THE POINT OF BEGINNING; THENCE SOUTHWESTERLY ALONG THENORTHERLY BOUNDARYLINE OF OKANOGAN COUNTYROAD 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 ofadverse possession and also any subsequent order ofthe trial court confirming the survey. On May 21, 2014, a commissioner ofthis courtruled thatthe November 8,2013 orderwas not final or appealable and denied Ms. Samse's motion torestrict 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 boththe trial court's findings offact, conclusions oflaw, and order from November 8, 2013 and thetrial court's order denying the motion for reconsideration from November 18,2013. She contends (1) the trial court erredby fmding the Popeliers established adverse possession ofthe area adjacentto the access


### 8 

# INo. 32090-1-III Popelier

### v. Samse
easement, (2) the trial court erred in relying oninadmissible hearsay evidence to fmd that the Popeliers adversely possessed the same, and (3) the trial court erred innot awarding her attorney fees and costs because she was the substantially prevailingparty and this court should award her attorney fees and costs on appeal underRCW 7.28.083(3). ANALYSIS "Adverse possession is a mixed question oflaw and fact: whetherthe essential facts exist is for the trier offact, but whetherthe 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 oflawreceive de novo review. Bryantv. 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 ofthe 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'to/Licensing, 157 Wn.2d446,468, 139 P.3d 1078 (2006). The reviewing court must defer to the trier offact for purposes ofresolving conflicting testimony and evaluating the persuasiveness ofthe evidence and credibility ofthe witnesses. Boeing Co. v. Heidy, 147 Wn.2d 78,87,51 P.3d 793 (2002). Unchallenged
9No. 32090-1-II1 

### Popelier 

### v. Samse findings offact are verities on appeal. 

### In re Estate of Jones, 152 Wn.2d 1,8,93 P.3d 147 (2004). 

### 1. Whether the trial courterred infinding that the Popeliers adverselypossessedthe bench-like area adjacent to the access easement Theprincipal focus ofMs. Samse's arguments is a piece ofproperty, sometimes described in the record as a bench-like area, adjacentto 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 oftheboundary ofthis property. Toprevail on a claim ofadverse possession, the claimant must show that possession is "(1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile." 

### ITTRayonier, 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. at209-10. The holder oflegal title is presumed to havepossession, sotheburden is onthe claimant to prove each element ofadverse possession. 

### ITTRayonier, 112 Wn.2d at 757. Theparty claiming adversepossession must prove each elementby a preponderance ofthe evidence to prevail. 

### Teel 

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

10

### No. 32090-I-II1 

### Popelier v. 

### Samse
On appeal, Ms. Samse only challenges the fIrst two elements ofadverse 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 insuffIcientto prove uninterrupted possession ofthe area for 10 years. In

### orderto establish actual and uninterrupted use ofthe property throughout the statutory 10-yearperiod, a claimant must demonstrate the same type ofuse thatatrue
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 theirproperty. 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 parktheir cars, trucks, equipment, tractors, and boats. Additionally, the Popeliers stated they have continuously maintained the area and improved the fence lines. Mr. PopeliertestifIed he maintained the area near the fence by
11No. 32090-l-Ill 

### Popelierv. 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 onthe property at least since 1995 whenMr. Goss purchased his propertyjustwest 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, "WithMr. Thompson's testimony about no particular change in the area from the time ofhis purchase and evidence aboutMr. Buell creating the rockwall 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 supporther 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 theirposition thatthey regularly parked vehicles in the bench-like area adjacent to the easement. Ms. Samse fails to cite any analogous case
12No. 32090-I-II1 Popelier 

### v. Samse
where courts have held that uses similarto 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 tothe access easementwas actual and uninterrupted. Open and Notorious Use Second, Ms. Samse contends thatthe Popeliers did not satisfy the open and notorious element ofadverse possession where (I)the Popeliers' use ofthe property was insufficient toput her onnotice 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 thanjustthe bench-like area above the rock wall. The open and notorious element is satisfied if(l) the titleholder ofthe property has actual notice ofanotherparty's adverse use throughout the 10-year statutory period, or (2) the titleholder is deemed tohave constructive notice because the claimantused the property such that any reasonable person would have thought he owned it. Chaplin 

### v. Sanders, 100 Wn.2d 853,862,676P.2d 431 (1984). Again, the court must considerthe
13No. 32090-I-II1 Popelier 

### v. Samse

nature ofthe land when deciding whetherthe record ownerhad 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 herpredecessor in interest because theirparked 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 toprove the boundaries
were well defined. The trial court found, "Notestimony 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 thatthis 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, orby a fence." Bryant, 86 Wn. App. at 212 (footnotes omitted). "Adverse possession does notrequire establishing a clearly demarcated line." Riley v. Andres, 107 Wn. App. 391, 396,27 P.3d 618 (2001). Instead, "the court may project a

14No. 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 whichthey parked theirvehicles. This testimony, aided by numerous photographs, allowed the trial court to approximate the area ofactual and continuous use. Third, Ms. Samse contends the boundary line established by the court improperly includes more property thanjustthe bench-like area above the rock wall. Ms. Samse cites Lloydv. 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 areathat did notpermit a fence or other clear demarcation. 83 Wn. App. at 853­ 54. Ms. Samse argues that the facts ofLloydare distinguishable from this case and, thus, this court should determine thatthe trial court's demarcation was improper. Ms. Samse states inherbriefing, "UnlikeLloyd, there is no uncontroverted evidence that the Popeliers used the entire area between the yellow bucket andthe posts to parkvehicles." Br. of Appellant at25. However, Ms. Samse misstates theLloydcourt's conclusion. TheLloyd 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. TheLloydcourtthen stated, "Courts


### 15No. 32090-I-III 

### Popelier v. 

### Samse
may create a penumbra ofground around areas actually possessed whenreasonably necessary to carry out the objective ofsettling boundary disputes." Id. at 853-54. Thus, the

### Lloydcourt's analysis actually contradicts Ms. Samse's argument. Even ifthis court agreed with Ms. Samsethat 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 thetrial courtis based on objects shown inthe photographs that were entered into evidence and generally conforms to the testimony regarding the areawhere the Popeliers parked theirvehicles. This area includes the rock wall, which the courtproperly usedto 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 thejudgment. 

### 2. Whether the trial court erred in relying on inadmissible hearsay evidence tofind that the Popeliers adverselypossessedthe bench-like area Ms. Samse argues that the trial court erred in admitting Mr. Popelier's testimony concerning whathis predecessor in interest, Mr. Buell, described as the boundary between the two lots. She argues that this error wasprejudicial because the trial courtrelied on the testimony to fmd a fence once existed around the access easement area and to determine

16No. 32090-1-I1I Popelier 

### v. Samse
the boundary ofthe adversely possessed area in the absence ofany other evidence concerning the disputed boundary. Mr. Popelier testifiedthat a fence enclosed the area adjacent tothe access easement when he and his wife movedtothe property. Mr. Popelier also testified thathe
was told by Mr. Buell that the fence around the access easement area constituted the boundary betweenthe two lots. Ms. Samse objected tothese statements. The court overruledthe objection and admitted Mr. Buell's out-of-court statements under ER 803(a)(14). This courtreviews admission ofevidence under a hearsay exception for abuse of discretion. Brundridge v. FluorFed. Servs., 164 Wn.2d 432,450, 191 P.3d 879 (2008). 

### A trial court abuses its discretion when it takes a view thatnoreasonable person would take. Id. Evidentiary error is grounds for reversal where itresults 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)). Itis undisputedthat 

### Mr. Popelier'stestimony regarding 

### Mr. Buell's statements is hearsay. ER 803(a)(14) provides a hearsay exceptiononly for records of documents
17No. 32090-1-III Popelier 

### v. Samse affecting an interest in property. Mr. Buell's statements to Mr. Popelier were not a record ofa document. The trial courtthus abused its discretion in admitting the testimony. However, this error did notprejudice Ms. Samsebecausethe trial court did not rely onthe hearsay evidence inreaching 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 mayormay not have existed around the access easement area at various times during the Popeliers' ownership oftheir lot. Instead, the trial court's analysis focuses onthe photographic evidence andthe testimony ofthePopeliers' otherwitnesses. Specifically, fmding 16 states, "Virtually all of[the Popeliers'] witnesses established that [the Popeliers] used the arearegularly for parking one ormore vehicles," and findings 25 and 26 describe a bucket and posts that coincide withwitnesses' descriptions ofthe area of adversepossession. CP at 20-21. We conclude that while the trial court abused its discretion in admitting the hearsay statements ofMr. Buell, this error was notprejudicial because numerous witnesses testifiedto the approximate area where the Popeliers parkedtheir vehicles for
over20years.

18No. 32090-1-III 

### Popelier v. Samse


### 3. Whether the trial courterred in notawardingMs. Samse attorney fees Ms. Samse argues that the trial court erred in not awarding her attorney fees and costs because she was the substantially prevailingparty. 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 prevailingparty to reasonable attorney fees and costs in an action asserting title to realproperty by adverse possession. Nevertheless, RCW 7.28.083 applies only to actions filed on or after July 1, 20 12. LAWS OF2011, ch. 255, 

### § 2. The Popeliers filed suit asserting title to Ms. Samse'sproperty onJune 19, 2012. Thus, this statute does not apply tothis controversy. 

### 4. Whether the Popeliers are entitledto attorney fees The Popeliers request attorney fees on appeal under CR 11, RAP 18.1, RAP 18.9, andRCW 4.84.185. They contend thatMs. Samse's appeal was frivolous because it presents no debatable issues. An appeal is frivolous ifit is devoid ofmerit so that no reasonable possibility ofreversal exists. 

### Alexanderv. 

### Sanford, 181 Wn. App. 135, 184­ 85,325 P.3d 341 (quoting

### HartfordIns. 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." 

### Ahmadv. 

### Town of Springdale, 178 Wn. App. 333, 344, 314
19No. 32090-1-III 

### Popelier 

### v. Samse
P.3d 729 (2013), 

### review grantedbylman 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 ofmerit in its entirety. We deny the Popeliers' request for attorney fees on appeal. Affinn. A majority ofthe 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:

20