IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

JESUS GALVAN and JOSEFINA 

GALVAN, husband and wife,

Respondents,

v.

MIGUEL GALVAN and MARIA T. 

GALVAN, husband and wife,

Appellants.

)

)

)

)

)

)

)

)

)

)

)

No. 34825-3-III

UNPUBLISHED OPINION

KORSMO, J. — Appellants Miguel and Maria Galvan appeal from a judgment 

entered after a bench trial that directed the appellants to execute a deed giving an 

undivided 50 percent interest in 21 acres of Chelan County property the couple had 

purchased to respondents Jesus and Josephina Galvan.1 Because the record prevents this 

court from considering appellants’ claims, we affirm.

FACTS

The two couples orally agreed in 1989 to jointly purchase the property from Erma 

Anderson for the sum of $14,862.24. Respondents would give their share of the 

 

1 Because the parties, who are siblings, share the same surname, we will primarily 

reference them by the designations of “appellants” and “respondents” in order to avoid 

confusion. 

FILED

JUNE 7, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34825-3-III

Galvan, et ux v. Galvan, et ux

2

payment, typically in cash, but sometimes by check, to appellants, who would then make 

the payment to Ms. Anderson. This arrangement continued until March 1, 1994, when 

appellants declined to accept a $100.00 payment from respondents. The following year, 

Ms. Anderson deeded the property to appellants.

The appellants lived on the property. In 2005, respondents learned that their 

names were not on the deed and that appellants refused to add their names or return the 

payments they had contributed. Respondents then filed a lien against the land. In 2009, 

respondents filed this action to quiet title and receive a deed recognizing their half 

interest in the property. The complaint was amended to add claims of breach of contract, 

unjust enrichment, and conversion. Respondents filed an answer, but did not raise any 

affirmative defenses.

The case ultimately proceeded to bench trial. Although respondents were 

represented by counsel, appellants were not. Both couples testified in their own behalf, 

and three other members of the Galvan family testified for the respondents. The trial 

court found that the couples had entered into an oral agreement in 1989 and that 

respondents had made substantial payments to appellants. The court also determined that 

while appellants had paid the property taxes over the years, they had not paid rent to the 

respondents. 
No. 34825-3-III

Galvan, et ux v. Galvan, et ux

3

Based on those findings, the court ordered that the parties would each have equal 

50 percent ownership, imposed a constructive trust, and directed that a deed reflecting the 

50 percent interests should be executed. Miguel and Maria Galvan, now represented by 

counsel, then timely appealed to this court. A panel considered the matter without

hearing oral argument.

ANALYSIS

Appellants present two issues for this court. First, they contend that the trial 

court’s factual findings are not supported by the record. Second, they contend that this 

action was barred by the statute of limitations. Unfortunately for them, these claims are 

waived.

Factual Findings

Although they challenge the sufficiency of the evidence to support the trial court’s 

findings, appellants have not presented a verbatim report of the trial proceedings. We, 

thus, have no basis for considering this claim.

Normally, this court reviews the trial court’s decision following a bench trial to 

determine whether the findings are supported by substantial evidence and whether those 

findings support the conclusions of law. Dorsey v. King County, 51 Wn. App. 664, 668-

669, 754 P.2d 1255 (1988). Substantial evidence exists if the evidence is sufficient to 

persuade a fair-minded rational person of the truth of the evidence. In re Estate of Jones, 

152 Wn.2d 1, 8, 93 P.3d 147 (2004). Appellate courts do not find facts and cannot 
No. 34825-3-III

Galvan, et ux v. Galvan, et ux

4

substitute their view of the facts in the record for those of the trial judge. Thorndike v. 

Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959). Accordingly, the 

presence of conflicting evidence does not prevent evidence from being “substantial.” 

E.g., Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P.3d 162 (2010).

Unfortunately, the record of this appeal does not reflect the evidence the trial court 

considered. It is the burden of the party presenting an issue to ensure that the record is 

adequate for review. State v. Rienks, 46 Wn. App. 537, 544-545, 731 P.2d 1116 (1987). 

Here that failure falls on the appellants’ shoulders. We cannot review the adequacy of 

the evidence to support the findings since the record has not been supplied to us.

Accordingly, the factual findings are verities in this appeal. The two brothers and 

their spouses did agree to jointly purchase the property and the respondents did make 

their payments to the appellants. On this record, we have no basis for concluding 

otherwise. This argument is waived.

Statute of Limitations

Appellants also contend that the respondents brought their argument in an 

untimely manner, contending that the respondents were on notice in 1994 due to the 

occasion when appellants refused to accept payment from them. This argument was not 

presented to the trial court and also is one we lack an appropriate record to consider in 

this appeal.
No. 34825-3-III

Galvan, et ux v. Galvan, et ux

5

A statute of limitations is designed to protect individuals and courts from stale 

claims. Burns v. McClinton, 135 Wn. App. 285, 293, 143 P.3d 630 (2006). Typically, a 

statute of limitations is an affirmative defense that must be argued in the trial court in 

order to preserve the issue for appeal. CR 8(c); RAP 2.5(a); Harting v. Barton, 101 Wn. 

App. 954, 962, 6 P.3d 91 (2000). The statute of limitations, as an affirmative defense, is 

a matter on which the defendant bears the burden of proof. Haslund v. City of Seattle, 86 

Wn.2d 607, 620-621, 547 P.2d 1221 (1976). Whether a case was filed within the statute 

of limitations period is normally a question of law to be determined by a judge. Rivas v. 

Overlake Hosp. Med. Ctr., 164 Wn.2d 261, 267, 189 P.3d 753 (2008). The statute of 

limitations on a constructive trust begins to run when the beneficiary of the trust 

discovers, or should have discovered, the other party’s breach. Arneman v. Arneman, 43 

Wn.2d 787, 797, 264 P.2d 256 (1953).

Here, the lack of a record again is critical. Nothing in the record we do have in 

this appeal suggests that the statute of limitations claim was presented to the trial court. 

It was not included in the answer to the complaint. There is no indication that the parties 

developed the necessary facts in the record that would have allowed the trial judge to 

assess the contention. Whether appellants would have prevailed on this claim is one we 

cannot know since they did not ask the trial court to rule on the issue at a time in which 

both parties could have marshalled their evidence and make appropriate arguments.
No. 34825-3-III 

Galvan, et ux v. Galvan, et ux 

Having failed to raise this issue in the trial court, appellants have not preserved the 

issue for our consideration. Harting, 101 Wn. App. at 962. 

The judgment is affirmed. 

A majority of the panel has determined 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: 

_J; Fear�t J

Siddoway, J. 

6