Filed Washington State Court of Appeals Division Two
December 5, 2017 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II ERIC O. RASMUSSEN, M.D., and JANICE No. 49433-7-II M. RASMUSSEN, and the marital community comprised thereof,
Respondents/Cross Appellants,
v.
RODNEY RICH and SANDRA RICH, and the marital community comprised thereof, UNPUBLISHED OPINION
Appellants/Cross Respondents.
WORSWICK, P.J. — Rodney and Sandra Rich appeal the trial court’s summary judgment
order quieting title in certain property. The Riches argue that the trial court erred in granting
Eric O. Rasmussen, M.D., and Janice M. Rasmussen’s motion for summary judgment because
the Riches presented sufficient evidence to support their affirmative defenses of equitable
estoppel and laches and their counterclaim for mutual recognition and acquiescence. The
Rasmussens cross appeal, arguing that the trial court erred in granting the Riches’ motion for
reconsideration and denying attorney fees and costs to the Rasmussens.
We reverse in part the trial court’s order granting the Rasmussens’ motion for summary
judgment on their quiet title claim and remand for further proceedings because there is a genuine
issue of material fact regarding whether the Riches’ equitable estoppel defense defeats the
Rasmussens’ claim. We affirm the trial court’s order granting summary judgment dismissal of
the Riches’ laches defense and mutual recognition and acquiescence counterclaim, and we affirm No. 49433-7-II
the trial court’s order granting the Riches’ motion for reconsideration, which denied attorney fees
and costs to the Rasmussens.
FACTS
In 1993, the Riches purchased a parcel of property on Bainbridge Island. The Riches’
property is a waterfront lot that consists of a bluff, where their home sits, and a hillside leading to
the beach. Soon after they purchased their property, the Riches met with their neighbors, the
Rasmussens, to discuss the boundary line between their properties. Mr. Rich asked Mr.
Rasmussen where the property line was on the beach. Mr. Rasmussen stated that “he did not
know exactly where it was” because it had not been surveyed, but “he believed that it was at the
end of his deck.” Clerk’s Papers (CP) at 76. The Riches and the Rasmussens also agreed that a
concrete wall that the Riches planned to build next to laurel hedges on the bluff between their
properties would serve as the true boundary line.
The end of the Rasmussens’ deck cannot be seen from the top of the bluff. The Riches
asked the Rasmussens if they should get a survey to determine the true boundary line between
their properties, and the Rasmussens answered in the negative. The Riches believed that their
conversation with the Rasmussens established that the boundary line between their properties
would run from the Rasmussens’ deck on the beach to the concrete wall on the bluff.
Soon after purchasing their property, the Riches built a concrete wall that abutted the
laurel hedge on the bluff. The hillside between the concrete wall on the bluff and the
Rasmussens’ deck on the beach is approximately 75 feet in length and consisted of overgrown
blackberries and ivy. There were no property markers in the overgrown vegetation, and the
Riches did not otherwise physically mark the purported boundary line on the hillside.
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The Riches began making improvements on the hillside in 2007. The Riches built a
concrete deck and concrete retaining wall on the beach in 2008. The Riches also built terraces
along the hillside between 2010 and 2013. Later in 2013, the Rasmussens obtained a survey of
the true boundary line of their property. The survey revealed that the Riches’ concrete deck and
retaining wall on the beach extended over 12 feet into the Rasmussens’ property, and the
terracing on the hillside extended over 9 feet into the Rasmussens’ property. After obtaining the
survey, the Rasmussens and the Riches engaged in negotiations with their attorneys regarding the
Riches’ encroachments. The negotiations were unsuccessful.
In 2015, the Rasmussens filed a complaint to quiet title to the disputed area between the
Riches’ purported boundary line and the true boundary line between their properties. The Riches
pleaded the affirmative defenses of equitable estoppel and laches. The Riches also filed a
counterclaim for mutual recognition and acquiescence.
The Rasmussens later filed a motion for summary judgment, arguing that the Riches
failed to present sufficient evidence to support their mutual recognition and acquiescence
counterclaim. The trial court granted the Rasmussens’ motion for summary judgment, finding
that the Rasmussens were entitled to an order quieting title to the disputed area. The trial court
also dismissed the Riches’ mutual recognition and acquiescence counterclaim with prejudice and
awarded the Rasmussens attorney fees and costs under RCW 7.28.083(3).
The Riches filed a motion for reconsideration, arguing, among other things, that the trial
court erred in awarding the Rasmussens attorney fees and costs under RCW 7.28.083(3) because
the statute authorizes an award of fees for only adverse possession actions. The trial court
granted the Riches’ motion for reconsideration and vacated its award of fees and costs. The
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Riches appeal the trial court’s summary judgment order quieting title in the disputed property,
and the Rasmussens appeal the trial court’s order granting the Riches’ motion for reconsideration
and denying attorney fees and costs to the Rasmussens.
ANALYSIS
The Riches argue that the trial court erred in granting the Rasmussens’ motion for
summary judgment because they presented sufficient evidence to support their counterclaim and
pleaded affirmative defenses. In their cross appeal, the Rasmussens argue that the trial court
erred in granting the Riches’ motion for reconsideration of the trial court’s award of attorney fees
and costs to the Rasmussens under RCW 7.28.083(3).
We reverse in part the trial court’s order granting the Rasmussens’ motion for summary
judgment on their quiet title claim and remand for further proceedings because there is a genuine
issue of material fact regarding whether the Riches’ equitable estoppel defense defeats the
Rasmussens’ claim. We affirm the trial court’s order granting summary judgment dismissal of
the Riches’ laches defense and mutual recognition and acquiescence counterclaim, and we affirm
the trial court’s order granting the Riches’ motion for reconsideration on the issue of attorney
fees and costs.
I. SUMMARY JUDGMENT
The Riches argue that the trial court erred in granting the Rasmussens’ motion for
summary judgment because they presented sufficient evidence to support their equitable estoppel
affirmative defense, mutual recognition and acquiescence counterclaim, and laches affirmative
defense. We hold that there is a genuine issue of material fact regarding whether the Riches’
equitable estoppel defense defeats the Rasmussens’ quiet title claim, but we affirm summary
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judgment dismissal of the Riches’ laches defense and dismissal of their mutual recognition and
acquiescence counterclaim.
A. Legal Principles
We review a trial court’s order granting summary judgment de novo. Ranger Ins. Co. v.
Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is appropriate
only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of
any genuine issues of material fact and the moving party is entitled to judgment as a matter of
law. CR 56(c). When determining whether a genuine issue of material fact exists, we consider
all facts and reasonable inferences in the light most favorable to the nonmoving party. Ranger
Ins. Co., 164 Wn.2d at 552. “A material fact is one on which the litigation’s outcome depends in
whole or in part.” TT Props. v. City of Tacoma, 192 Wn. App. 238, 245, 366 P.3d 465, review
denied, 185 Wn.2d 1036 (2016).
“Summary judgment is subject to a burden-shifting scheme.” Ranger Ins. Co., 164
Wn.2d at 552. The moving party bears the burden of demonstrating that there are no genuine
issues of material fact. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109
P.3d 805 (2005). A party may move for summary judgment by alleging that the nonmoving
party failed to present sufficient evidence to support its case and showing “‘those portions of the
record, together with the affidavits, if any, which . . . demonstrate the absence of a genuine issue
of material fact.’” Pac. Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d 342, 351, 144
P.3d 276 (2006) (quoting Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 22, 851 P.2d 689
(1993)). If the moving party satisfies its burden, the nonmoving party must present evidence that
rebuts the moving party’s contentions and demonstrates that material facts are in dispute.
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Vallandigham, 154 Wn.2d at 26. If the nonmoving party fails to meet its burden, summary
judgment is proper. 154 Wn.2d at 26.
B. Equitable Estoppel Defense
The Riches argue that the trial court erred in granting the Rasmussens’ motion for
summary judgment because they presented sufficient evidence to support their equitable estoppel
affirmative defense. We hold that there is a genuine issue of material fact regarding whether the
Riches’ equitable estoppel defense defeats the Rasmussens’ quiet title claim. Accordingly, the
trial court erred in granting summary judgment dismissal of the Riches’ equitable estoppel
defense.
The doctrine of equitable estoppel provides that a party may be prevented from setting up
his legal title when he has, through his actions, words, or silence, led another to take a position in
which the assertion of the legal title would be contrary to equity. Sorenson v. Pyeatt, 158 Wn.2d
523, 539, 146 P.3d 1172 (2006). The elements of equitable estoppel are: “‘(1) an admission,
statement or act inconsistent with a claim afterwards asserted, (2) action by another in
[reasonable] reliance upon that act, statement or admission, and (3) injury to the relying party
from allowing the first party to contradict or repudiate the prior act, statement or admission.’”
Lybbert v. Grant County, 141 Wn.2d 29, 35, 1 P.3d 1124 (2000) (alteration in original) (quoting
Board of Regents v. City of Seattle, 108 Wn.2d 545, 551, 741 P.2d 11 (1987)). The burden is on
the party asserting estoppel to establish the elements by clear, cogent, and convincing evidence.
Nickell v. Southview Homeowners Ass’n, 167 Wn. App. 42, 54, 271 P.3d 973 (2012).
Here, there is a question as to whether the Riches reasonably relied on the Rasmsussens’
statement concerning the purported boundary line between the two properties, and this fact
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determines the outcome of the Riches’ equitable estoppel defense. Accordingly, there is a
genuine issue of material fact regarding whether equitable estoppel defeats the Rasmussens’
quiet title claim. Therefore, the trial court erred in granting the Rasmussens’ motion for
summary judgment dismissal of the Riches’ equitable estoppel defense.
C. Laches Defense
The Riches also argue that the trial court erred in granting the Rasmussens’ motion for
summary judgment because they presented sufficient evidence to support their laches affirmative
defense. We hold that the trial court did not err in summarily dismissing this defense.
The equitable doctrine of laches is the implied waiver of an action arising from
knowledge of existing conditions and acquiescence in them. Felida Neighborhood Ass’n v.
Clark County, 81 Wn. App. 155, 162, 913 P.2d 823 (1996). The doctrine of laches consists of
two elements: (1) inexcusable delay and (2) prejudice to the other party from such delay. Clark
County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wn.2d 840, 848, 991 P.2d 1161 (2000). “It is
only appropriate to apply laches when a party, knowing his rights, takes no steps to enforce them
and the condition of the other party has in good faith become so changed that he cannot be
restored to his former state.” Brost v. L.A.N.D., Inc., 37 Wn. App. 372, 375-76, 680 P.2d 453
(1984) (alteration in original).
Shortly after purchasing the property next to the Rasmussens, the Riches sought to
determine the boundary line. Mr. Rich “asked where the property line was [on the beach], and
[Mr. Rasmussen said] he did not know exactly where it was. It had not been surveyed . . . but he
believed that it was at the end of his deck.” CP at 76. The Riches first began making
improvements to the disputed area in 2007. The Riches began cutting into the hillside to build
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terraces from the beach to the bluff but ended this project soon after. In 2008, the Riches built a
concrete deck and retaining wall on the beach. The Riches then resumed building terraces along
the hillside in 2010 and completed building the terraces in 2013.
Later in 2013, the Rasmussens obtained a survey of the true boundary line of their
property. The survey revealed that the Riches’ concrete deck and retaining wall on the beach
extended over 12 feet into the Rasmussens’ property, and the terracing on the hillside extended
over 9 feet into the Rasmussens’ property. After obtaining the survey, the Rasmussens and the
Riches engaged in negotiations with their attorneys. The negotiations were unsuccessful, and the
Rasmussens filed their complaint to quiet title in 2015.
It is improper to apply the equitable doctrine of laches to the facts in this case. The
record does not show that the Rasmussens inexcusably delayed their action to quiet title to the
disputed property. The Rasmussens did not have knowledge of their true boundary line until
they obtained a survey in 2013. After obtaining the survey, the Rasmussens entered into
negotiations with the Riches. Negotiations were unsuccessful, and the Rasmussens filed a
lawsuit to quiet title to the disputed area. The Rasmussens became aware of their property rights
upon obtaining the survey and did not inexcusably delay in initiating this cause of action.
Because the Riches fail to establish that the Rasmussens inexcusably delayed in filing their
claim, they fail to show that they are entitled to judgment as a matter of law under the doctrine of
laches. As a result, the trial court did not err in summarily dismissing the defense of laches.
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D. Mutual Recognition and Acquiescence Counterclaim
The Riches also argue that the trial court erred in granting the Rasmussens’ motion for
summary judgment because they presented sufficient evidence to support their mutual
recognition and acquiescence counterclaim. We disagree.
Property boundaries that are at odds with the true boundary, as established by a survey,
may be established through the doctrine of mutual recognition and acquiescence. Lamm v.
McTighe, 72 Wn.2d 587, 591, 434 P.2d 565 (1967). The doctrine of mutual recognition and
acquiescence permits neighbors to adjust their property boundaries by oral acts or their acts on
the ground. Green v. Hooper, 149 Wn. App. 627, 639, 205 P.3d 134 (2009).
A party claiming title to land under the mutual recognition and acquiescence doctrine
must prove:
(1) that the boundary line between two properties was “certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.”; (2) that the adjoining landowners, in the absence of an express boundary line agreement, manifested in good faith a mutual recognition of the designated boundary line as the true line; and (3) that mutual recognition of the boundary line continued for the period of time necessary to establish adverse possession (10 years).
Merriman v. Cokeley, 168 Wn.2d 627, 630, 230 P.3d 162 (2010) (quoting Lamm, 72 Wn.2d at
593). The party must prove these elements by clear, cogent, and convincing evidence. 168
Wn.2d at 630. To meet this standard of proof, the evidence must show that the ultimate facts are
highly probable. 168 Wn.2d at 630-31.
To establish the first element of a mutual recognition and acquiescence claim, a party
must show that the purported property boundary line is “‘certain, well defined, and in some
fashion physically designated upon the ground.’” 168 Wn.2d at 630 (quoting Lamm, 72 Wn.2d
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at 593). While generally there is no requirement that the purported boundary line be an
uninterrupted tangible object, like a fence, “more than isolated markers are required to prove a
clear and well-defined boundary.” 168 Wn.2d at 631. Instead, a fence, pathway, or another
monument or combination of monuments must clearly divide the two parcels of property. 168
Wn.2d at 631. If the boundary line is insufficiently defined, a party’s mutual recognition and
acquiescence claim fails. See 168 Wn.2d at 631.
Shortly after the Riches purchased their property in 1993, they had a discussion with the
Rasmussens regarding the boundary line between their two properties. The Rasmussens stated
that they believed their boundary line ran against the edge of their deck on the beach. The
Riches and the Rasmussens also agreed that the property line on the bluff would run against the
Riches’ future concrete wall. The Riches did not physically demarcate the purported boundary
line between the concrete wall and the Rasmussens’ deck, and the Rasmussens’ deck cannot be
seen from the top of the bluff. The hillside between the concrete wall and the Rasmussens’ deck
is approximately 75 feet in length and consisted of overgrown blackberries and ivy.
The Riches argue that the boundary line was certain and well defined because it was
affixed by two monuments—the end of the concrete wall on the bluff and the end of the
Rasmussens’ deck on the beach. Despite this, the boundary line was not certain and well defined
because these two isolated monuments are insufficient to establish a boundary line in an
overgrown area.
In Merriman, the Washington Supreme Court determined that “three widely spaced
markers . . . set in a thicket of blackberry bushes, ivy, and weeds, did not constitute a clear and
well-defined boundary.” 168 Wn.2d at 632. The Merriman court noted that, historically,
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appellate courts have declined to find a certain and well-defined boundary where there is no
fence or defining point of cultivation or where there is only a retaining wall, and no other
monuments, that extends a short distance into the disputed property. 168 Wn.2d at 631-32
(citing Scott v. Slater, 42 Wn.2d 366, 368-69, 255 P.2d 377 (1953), overruled on other grounds
by Chaplin v. Sanders, 100 Wn.2d 853, 862 n.2, 676 P.2d 431 (1984); Green, 149 Wn. App. at
642).
Merriman is instructive here. The hillside between the Riches’ concrete wall and the
Rasmussens’ deck is approximately 75 feet in length. It is undisputed that the hillside was filled
with overgrown vegetation. The Riches also stated that they did not physically demarcate the
boundary line through the overgrowth. Only the concrete wall on the bluff and the Rasmussens’
deck on the beach demarcated the Riches’ purported boundary line. Yet these monuments were
widely spaced and extend a relatively short distance into the disputed area. As a result, no
monument or combination of monuments clearly divided the Riches’ property from the
Rasmussens’ property. Because no more than isolated markers designated the purported
boundary line, there is no genuine issue of material fact regarding the certainty of the Riches’
purported boundary line. Accordingly, the Riches failed to present sufficient evidence to support
their mutual recognition and acquiescence counterclaim. Thus, the trial court did not err in
granting the Rasmussens’ motion for summary judgment dismissal of the Riches’ counterclaim.1
1 Because we determine that the Riches failed to present sufficient evidence to show that the purported boundary line was certain, well defined, and physically designated, we do not reach the remaining elements of their mutual recognition and acquiescence counterclaim. However, we note that there can be no express agreement regarding a purported boundary line when the monuments that demarcate the line do not exist at the time of the alleged agreement.
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II. CROSS APPEAL: MOTION FOR RECONSIDERATION
On cross appeal, the Rasmussens argue that the trial court erred in granting the Riches’
motion for reconsideration of the trial court’s award of attorney fees and costs to the
Rasmussens. Specifically, the Rasmussens argue that they were entitled to an award of attorney
fees and costs under RCW 7.28.083(3). We disagree.
We review a trial court’s decision regarding a motion for reconsideration for an abuse of
discretion. Landstar Inway, Inc. v. Samrow, 181 Wn. App. 109, 120, 325 P.3d 327 (2014). A
trial court abuses its discretion when its decision is manifestly unreasonable or based upon
untenable grounds. 181 Wn. App. at 121.
Generally, a trial court will not award attorney fees unless fees are authorized by contract,
statute, or a recognized ground in equity. Durland v. San Juan County, 182 Wn.2d 55, 76, 340
P.3d 191 (2014). RCW 7.28.083(3) provides that “[t]he prevailing party in an action asserting
title to real property by adverse possession may request the court to award costs and reasonable
attorneys’ fees.”
In granting the Rasmussens’ motion for summary judgment, the trial court awarded the
Rasmussens reasonable attorney fees and costs under RCW 7.28.083(3).2 The Riches filed a
motion for reconsideration of the trial court’s fee award, arguing that the doctrines of adverse
possession and mutual recognition and acquiescence are separate theories that involve different
elements. As a result, the Riches argued, RCW 7.28.083(3) did not authorize an award of
attorney fees and costs to a party prevailing on a mutual recognition and acquiescence claim.
2 RCW 7.28.083(3) provides that the prevailing party in an adverse possession claim may request reasonable attorney fees.
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The trial court granted the Riches’ motion for reconsideration, determining that RCW
7.28.083(3) did not authorize an award of attorney fees or costs to the Rasmussens.
The doctrine of mutual recognition and acquiescence is considered to supplement adverse
possession. Green, 149 Wn. App. at 639 (citing 17 WILLIAM B. STOEBUCK & JOHN W. WEAVER,
WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 8.21, at 544 (2d ed. 2004)). Despite
this, mutual recognition and acquiescence is an alternate claim to adverse possession, and the
two doctrines “are separate and independent theories and claims.” 149 Wn. App. at 639. Mutual
recognition and acquiescence is based on implied or express boundary agreements while adverse
possession requires the possessor to appropriate another’s property. Compare Lamm, 72 Wn.2d
at 591, with Lloyd v. Montecucco, 83 Wn. App. 846, 852-53, 924 P.2d 927 (1996).
RCW 7.28.083(3) authorizes an award for attorney fees and costs to the prevailing party
in an adverse possession action. Because mutual recognition and acquiescence is a separate
theory and claim from adverse possession that requires a showing of different elements, it cannot
be said to be an adverse possession action for purposes of RCW 7.28.083(3). Accordingly,
RCW 7.28.083(3) does not authorize an award of attorney fees and costs to the prevailing party
in a mutual recognition and acquiescence claim. Therefore, the trial court did not abuse its
discretion in granting the Riches’ motion for reconsideration because its decision was based on
tenable grounds and was not manifestly unreasonable.
CONCLUSION
We reverse in part the trial court’s order granting the Rasmussens’ motion for summary
judgment on their quiet title claim and remand for further proceedings because there is a genuine
issue of material fact regarding whether the Riches’ equitable estoppel defense defeats the
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Rasmussens’ claim. We affirm the trial court’s order granting summary judgment dismissal of
the Riches’ laches defense and mutual recognition and acquiescence counterclaim. We also
affirm the trial court’s order granting the Riches’ motion for reconsideration and denying
attorney fees and costs to the Rasmussens.
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.
Worswick, P.J. We concur:
Lee, J.
Sutton, J.