IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

EDWARD PRAXEL and KATHLEEN 

PRAXEL, Husband and Wife,

No. 55072-5-II

Appellants,

v.

KELLY BAGNELL and GORDY BAGNELL, 

Husband and Wife,

Respondents,

UNPUBLISHED OPINION

MARK HALL and LISA ROCK,

Respondents.

LEE, C.J. — Edward and Kathleen Praxel appeal the superior court’s order granting partial 

summary judgment in favor of Kelly and Gordy Bagnell1and dismissing the Praxels’ adverse 

possession claim. The Praxels argue that there was a genuine issue of material fact regarding 

hostile possession of the disputed property. We disagree and affirm. 

FACTS

Kelly owned property at 195 Camp Creek Road in Montesano, Washington. Kelly lived 

at the property from 1991-2003. Kelly purchased the property from her father, Richard Jacobs.

 

1

 We refer to the Praxels and Bagnells collectively by their last name. When necessary to refer to 

individuals with the same last name, we use first names for clarity. We intend no disrespect. 

Filed

Washington State

Court of Appeals

Division Two

December 28, 2021
No. 55072-5-II

2

Jacobs lived on the adjacent property at 205 Camp Creek Road. In 1996, Jacobs erected a 

fence around 205 Camp Creek Road. After putting up the fence, Jacobs also constructed a 

windmill on the property. Jacobs lived at this property until his death. 

The Praxels purchased 205 Camp Creek Road from Jacobs’ estate in 2015. After the 

purchase, the Praxels had a survey conducted on the property. The survey showed that the fence 

was not the boundary line between Kelly’s property and the Praxels’ property, but was built on 

Kelly’s property, creating an area of disputed property. 

On August 4, 2016, the Praxels filed an action against the Bagnells to quiet title to the 

property through adverse possession. The complaint also sought damages resulting from damage 

the Bagnells caused to the fence and the property. The Bagnells filed an answer to the complaint,

which included counterclaims for tortious interference with the sale of property, trespass, nuisance, 

and willful interference. 

On June 2, 2017, the Bagnells filed a motion for partial summary judgment on the Praxels’ 

adverse possession claim. The Bagnells argued that the Praxels’ adverse possession claim must 

fail because Jacobs permissively used the Bagnells’ property. The Praxels filed a response to the 

motion for partial summary judgment, arguing that Jacobs adversely possessed the disputed 

portion of the property since he built a fence around his property in 1996.

The Bagnells supported their motion for partial summary judgment, in part, by submitting 

Kelly’s deposition. In the deposition, Kelly explained that she and Jacobs agreed on where to 

install the fence:

We agreed on where [the fence] should sit just for aesthetic reasons, on where it 

will—you know, to square things up and so forth, and then he paid to have it put 

in.
No. 55072-5-II

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Clerk’s Papers (CP) at 72. Kelly also explained that the drain field for her house was on the other 

side of the fence. The drainfield had been installed prior to the fence being erected. Both Kelly 

and Jacobs maintained the disputed property. Kelly stated that she stained the fence and both she 

and Jacobs arranged for the property to be mowed. There was also a fire pit on the property that 

she and Jacobs used. Kelly admitted that she did not know the windmill was on her property until 

the Praxels’ survey; however, she did know about the placement of the windmill and that the 

placement was just an estimate:

When my dad had [the windmill] put in, he knew it was roughly—he thought he 

was right on the corner of the property line, so he knew he was close. But he just 

kind of walked it off.

CP at 83. The Praxels did not object to or move to strike any of Kelly’s statements made in the 

deposition. 

A superior court commissioner granted the Bagnells’ motion for partial summary 

judgment. The commissioner found that there was no genuine issue of material fact that the 

relationship between Kelly and Jacobs was not adversarial and that the fence was erected by 

agreement. The commissioner quieted title in favor of the Bagnells. 

The Praxels moved to revise the commissioner’s order granting the Bagnells’ motion for 

partial summary judgment. The superior court denied the motion to revise. 

The Praxels then moved for summary judgment on the Bagnells’ counterclaims. The 

superior court granted summary judgment on the Bagnells’ tortious interference and nuisance 

claim. The superior court also granted summary judgment on a portion of the Bagnells’ trespass 

claim. The Bagnells’ then stipulated to dismissal of the unresolved portion of the trespass claim. 
No. 55072-5-II

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The Praxels appealed the superior court’s order granting partial summary judgment in favor 

of the Bagnells and dismissing the Praxels’ adverse possession claim. After the Praxels appealed, 

the Bagnells filed a motion to substitute parties because they sold their property to Mark Hall and 

Lisa Rock.2 A commissioner of our court granted the Bagnells’ motion to substitute parties.3 

ANALYSIS

A. LEGAL PRINCIPLES

We review summary judgment orders de novo. Sartin v. Estate of McPike, 15 Wn. App. 

2d 163, 172, 475 P.3d 522 (2020), review denied, 196 Wn.2d 1046 (2021). Summary judgment is 

appropriate if there are no genuine issues of material fact and the moving party is entitled to 

judgment as a matter of law. CR 56(c). A genuine issue of material fact exists if reasonable minds 

could disagree on the conclusion of a factual issue. Sartin, 15 Wn. App. 2d at 172. We review all 

facts and reasonable inferences drawn from those facts in the light most favorable to the 

nonmoving party. Id.

The moving party “bears the initial burden to show there is no genuine issue of material 

fact.” Id. The moving defendant can meet this burden by showing that the plaintiff cannot support 

their claim with any evidence. Id. The burden then “shifts to the plaintiff to present specific facts 

that reveal a genuine issue of material fact.” Id. If a plaintiff fails to put forth sufficient evidence 

to create a question of fact on an essential element that he or she will have the burden of proof at 

trial, then summary judgment is appropriate. Id.

 

2

 Mot. to Substitute Parties at 1 (Dec. 11, 2020).

3

 Ruling, (Dec. 14, 2020).
No. 55072-5-II

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B. KELLY’S STATEMENTS

The Praxels argue that the superior court should not have considered Kelly’s statements 

because they violated the “Dead Man Statute,” chapter RCW 5.60.030.4 We do not reach this 

issue.

“If a party fails to object to an affidavit or bring a motion to strike improper portions of an 

affidavit, any error is waived.” Podbielancik v. LLP Mortg. Ltd., 191 Wn. App. 662, 666, 362 

P.3d 1287 (2015); Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 (1979). 

Further, we consider only issues that are brought to the attention of the superior court on the motion 

for summary judgment. RAP 9.12. 

Here, the Praxels did not move in the superior court to strike any of Kelly’s statements in 

her deposition and raise the issue of Kelly’s statements violating the Dead Man Statute for the first 

time on appeal. Because the Praxels did not move to strike Kelly’s statements at the superior court, 

they have waived the argument that the superior court erred by considering Kelly’s statements. 

 

4

 RCW 5.60.030 provides:

No person offered as a witness shall be excluded from giving evidence by 

reason of his or her interest in the event of the action, as a party thereto or otherwise, 

but such interest may be shown to affect his or her credibility: PROVIDED, 

HOWEVER, That in an action or proceeding where the adverse party sues or 

defends as executor, administrator or legal representative of any deceased person, 

or as deriving right or title by, through or from any deceased person, or as the 

guardian or limited guardian of the estate or person of any incompetent or disabled 

person, or of any minor under the age of fourteen years, then a party in interest or 

to the record, shall not be admitted to testify in his or her own behalf as to any 

transaction had by him or her with, or any statement made to him or her, or in his 

or her presence, by any such deceased, incompetent or disabled person, or by any 

such minor under the age of fourteen years: PROVIDED FURTHER, That this 

exclusion shall not apply to parties of record who sue or defend in a representative 

or fiduciary capacity, and have no other or further interest in the action.
No. 55072-5-II

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Further, because the Praxels did not bring any issue regarding the Dead Man Statute to the attention 

of the superior court, we do not consider the issue on appeal. Accordingly, we do not consider the 

Praxels’ challenge to the superior court’s consideration of Kelly’s statements.

C. SUMMARY JUDGMENT ON ADVERSE POSSESSION

The Praxels argue that there is a genuine issue of material fact regarding whether Jacobs’ 

use of the land was hostile. We disagree. 

Adverse possession is established when the possession is (1) exclusive, (2) actual and 

uninterrupted, (3) open and notorious, and (4) hostile. Ofuasia v. Smurr, 198 Wn. App. 133, 143, 

392 P.3d 1148 (2017). “Hostility requires ‘that the claimant treat the land as his own as against 

the world, throughout the statutory period.’” Id. at 144 (internal quotation marks omitted) (quoting 

Nickell v. Southview Homeowners Ass’n, 167 Wn. App. 42, 50, 271 P.3d 973, review denied, 174 

Wn.2d 1018 (2012)). “Permission, express or implied, from the true owner negates the hostility 

element because permissive use is inconsistent with making use of property as would a true 

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

Generally, fences are expressions of hostile possession. Ofuasia, 198 Wn. App. at 144. 

The existence of a fence is prima facie evidence of hostile possession when the fence purports to 

be a boundary fence and the fence effectively excludes an abutting owner from the property. Id.

Here, Kelly stated that she and Jacobs agreed on where to put the fence. Because placement 

of the fence was done with Kelly’s permission and agreement, the fence is not evidence of hostile 

possession of the property. Further, because Kelly stated that she helped to maintain the disputed 

area and that both she and Jacobs used the area, the fence did not effectively exclude Kelly from 

the property. Rather, Kelly’s use of the disputed area highlights permissiveness. The Praxels do 
No. 55072-5-II

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not dispute any of these facts; instead, the Praxels rely on the existence of the fence itself to 

establish hostile possession. The mere presence of a fence based on this record does not create 

any genuine issues of material fact.

The Praxels also argue that the construction of the windmill on the disputed property is 

evidence of hostile possession. Although the windmill was constructed after the fence, Kelly was 

aware that Jacobs was constructing a windmill and knew that the placement of the windmill was 

based only on an estimate of the location of the property line because Jacobs just “walked it off” 

to estimate where the property line was before building the windmill. CP at 83. The Praxels do 

not dispute these facts. Therefore, there is no genuine issue of material fact regarding whether the 

windmill and its placement was with Kelly’s permission; the mere construction of the windmill 

was not evidence of hostile use.

Because the Praxels cannot show that there is a genuine issue of material fact regarding 

Jacobs’ hostile use of the disputed property, their adverse possession claim fails. Therefore, the 

superior court properly granted partial summary judgment to the Bagnells on the Praxels’ adverse 

possession claim. Accordingly, we affirm. 

D. ATTORNEY FEES ON APPEAL

Hall and Rock request attorney fees on appeal under RAP 18.1 and RCW 7.28.083(3). We 

grant the request for attorney fees. 

RAP 18.1(a) allows this court to award attorney fees “[i]f applicable law grants to a party 

the right to recover reasonable attorney fees or expenses on review.” RCW 7.28.083(3) provides:

The prevailing party in an action asserting title to real property by adverse 

possession may request the court to award costs and reasonable attorneys' fees. The 

court may award all or a portion of costs and reasonable attorneys' fees to the 
No. 55072-5-II

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prevailing party if, after considering all the facts, the court determines such an 

award is equitable and just.

RCW 7.28.083(3) allows an award of attorney fees on appeal. See Neighbors v. King County, 15 

Wn. App. 2d 71, 91, 479 P.3d 724 (2020). 

Here, Hall and Rock are the prevailing party on appeal and, therefore, are entitled to their 

appellate attorney fees. Awarding attorney fees to Hall and Rock is just and equitable because 

Hall and Rock had to defend against an appeal based primarily on a challenge to evidence that the 

Praxels failed to move to strike at the superior court. Therefore, we grant Hall and Rock’s request 

for attorney fees on appeal.

We affirm and grant appellate attorney fees to Hall and Rock.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

Lee, C.J.

We concur:

Cruser, J.

Price, J.