Draszt v. Naccarato

146 Wash. App. 536
Court of Appeals of Washington·Decided July 17, 2008·No. Nos. 24922-1-III; 24623-0-III; 25637-5-III·Published·Cited by 9 cases

Opinion

Sweeney, J.

¶1 The essential question raised by this appeal is whether the trial court’s findings of fact support its conclusions of adverse possession and mutual recognition and acquiescence to a disputed strip of land. We conclude that they do and affirm the judgment conferring ownership in the disputed strip of land to the adverse possessor.

FACTS

¶2 Jay and Dena Naccarato owned the Farmer’s Market and Garden Center (Market) and underlying property on Sprague Avenue in Spokane, Washington, from 1947 until 2000. Mattie (Long) Kivett (and her late husband) owned Rocky Café (Café), the business that borders the Market to the east.

¶3 The business owners jointly purchased the lot between their businesses (Lot 9) in 1983. They divided Lot 9 in “half” by quitclaim deeds in 1986. Mr. and Ms. Naccarato got the west half of Lot 9. And Ms. Kivett and her husband got the east half of Lot 9. But they did not survey the property. They wanted the Market building to serve as the boundary line. The Market building and fence instead encroached on the Café property by 12 feet.

¶4 Ms. Naccarato later conveyed the Market and underlying property by quitclaim deeds to her grandsons, Michael and Richard Naccarato (the Naccaratos). The deeds purported to convey, in part, “[t]he West One-Half of Lot 9.” Clerk’s Papers of Appeal No. 24922-1-III (CP) at 94-95. Ms. Kivett sold the Café and underlying property to Robert Brewer and Gerald Frazer in 1989. Mr. Brewer and Mr. [540]*540Frazer sold the Café and property to Thelma Draszt and her husband in 1995. The Draszts transferred the Café to the Draszt Revocable Living Trust in 1998. Deeds to Ms. Draszt or her trust purported to convey, in part, “[t]he East half of Lot 9.” CP at 43.

¶5 The Naccaratos and Ms. Draszt used the property they occupied continuously and without interruption.

¶6 Ms. Draszt sued the Naccaratos to quiet title to the east half of Lot 9 after a disagreement over the Café’s parking lot. The Naccaratos asserted adverse possession and mutual recognition and acquiescence. Ms. Draszt moved for summary judgment. The court denied her motion. The court made appropriate findings of fact and conclusions of law following a trial and entered judgment in favor of the Naccaratos. Ms. Draszt appeals the judgment and the order denying summary judgment.

¶7 Ms. Draszt also sued Ms. Kivett for damages for breach of warranties in the statutory warranty deed that transferred Ms. Kivett’s interest in the Café and underlying property to Mr. Brewer and Mr. Frazer. Ms. Kivett moved for summary judgment on the breach of warranty claim. The trial court granted her motion.

¶8 Ms. Draszt also appealed the trial court’s order dismissing her breach of warranty claim against Ms. Kivett. But she advised us during oral argument that she will abandon and dismiss that appeal. So the only appeals before us are Ms. Draszt’s appeals from the trial court’s judgment in favor of the Naccaratos and the order denying summary judgment.

DISCUSSION

Denial of Summary Judgment

¶9 Ms. Draszt first argues that the court should have granted her motion for summary judgment. But we will not review the denial of a summary judgment motion where the trial court denies the motion because of material facts and [541]*541a trial follows on those issues. Caulfield v. Kitsap County, 108 Wn. App. 242, 249 n.1, 29 P.3d 738 (2001). Instead, the “losing party must appeal from the sufficiency of the evidence presented at trial.” Id.

¶10 Here, the trial court denied Ms. Draszt’s motion for summary judgment on the Naccaratos’ counterclaims. It then held a bench trial on Ms. Draszt’s quiet title action and the Naccaratos’ counterclaims. The court entered judgment in the Naccaratos’ favor. Ms. Draszt therefore cannot appeal the order denying her summary judgment motion. Instead, she must challenge either the sufficiency of the evidence to support the court’s findings or the sufficiency of the findings to support the court’s conclusions of law.

Sufficiency of the Evidence

¶11 Ms. Draszt contends that the evidence is insufficient to support the necessary elements of adverse possession or mutual recognition and acquiescence. She has not, however, assigned error to any of the court’s findings of fact. She simply argues facts and inferences she suggests the court should have derived from the evidence. But unchallenged findings are verities on appeal. Zunino v. Rajewski, 140 Wn. App. 215, 220, 165 P.3d 57 (2007).

¶12 Here, the court entered findings of fact and conclusions of law. Ms. Draszt must assign error to specific findings and then show that the record does not support them. Standing Rock Homeowners Ass’n v. Misich, 106 Wn. App. 231, 243, 23 P.3d 520 (2001). She needs to point to the deficiencies she urges; bare conclusory allegations that evidence is insufficient is not enough. We will not search the record for alleged deficiencies. We require specific assignments of error. RAP 10.3(g).

¶13 We can then only review whether the findings support the trial court’s conclusions of law and judgment. Sunnyside Valley Irrigation Dist. v. Dickie, 111 Wn. App. 209, 214, 43 P.3d 1277 (2002), aff’d, 149 Wn.2d 873, 73 P.3d 369 (2003). We review conclusions of law de novo. Zunino, 140 Wn. App. at 220.

[542]*542Adverse Possession

¶14 To establish title by adverse possession, the claimant must prove his possession was actual and uninterrupted, open and notorious, hostile, and exclusive for more than 10 years. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). The construction and maintenance of a structure partially on the land of another almost necessarily is exclusive, actual and uninterrupted, open and notorious, hostile, and made under a claim of right. Reitz v. Knight, 62 Wn. App. 575, 582, 814 P.2d 1212 (1991).

¶15 Here, the trial court’s findings show that the Market’s building was on the disputed portion of Ms. Draszt’s half of Lot 9 for the requisite 10 years. “Where there is privity between successive occupants holding continuously and adversely to the true title holder, the successive periods of occupation may be tacked to each other to compute the required 10-year period of adverse holding.” Roy v. Cunningham, 46 Wn. App. 409, 413, 731 P.2d 526 (1986). Privity is established when the disputed property is transferred by deed and physically turned over. See Shelton v. Strickland, 106 Wn. App. 45, 53, 21 P.3d 1179 (2001). Lot 9 was divided in 1986. The Market building and its adjoining fence line have encroached approximately 12 feet over Ms. Draszt’s half of Lot 9 since then.

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