FILED OCTOBER 12, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
JOHN L. WAGGONER and ) No. 37180-8-III GERALDINE F. WAGGONER, husband ) and wife, ) ) Respondents, ) ) v. ) ) STIMSON LUMBER COMPANY, an ) Oregon Corporation; THE McCORMICK ) UNPUBLISHED OPINION FAMILY TRUST; ) ) Defendants, ) ) PETE D. McCORMICK and LINDA J. ) McCORMICK, husband and wife, ) CARL KOSTOFF and JO ELLEN ) KOSTOFF, husband and wife, ) ) Appellants. )
LAWRENCE-BERREY, J. — The McCormicks and the Kostoffs appeal the trial
court’s dismissal of their counterclaim for attorney fees. We affirm. No. 37180-8-III Waggoner v. Stimson Lumber Co.
FACTS
In 1986, John Les Waggoner and his wife Geraldine F. Waggoner (the Waggoners)
purchased property in the Scotia Valley, Pend Oreille County. An old abandoned railroad
line ran through their property. In 1988, Louis and Barbara Waggoner moved onto
property next door. Louis and John are brothers.
Before 1988, residents of the Scotia Valley drove on the railroad right-of-way
(RROW) to access their homes. In 1988, the Waggoners removed the remaining railroad
spikes and used their grader to push the existing gravel to widen the road. Since 1988,
the Waggoners regularly used and maintained Makai Lane by plowing it in the winter,
mowing weeds in the summer, grading it with gravel, and trimming overhanging trees.
The RROW-turned-private-road has long been referred to as Makai Lane and is at the
center of this dispute.1
Around 2005, the Waggoners purchased property immediately to the southeast—
labeled “Pearson” on the map—and listed their property for sale. In March 2005, the
Waggoners entered into a purchase and sale agreement (PSA) with Peter and Linda
McCormick. A provision of that agreement reads:
1 For the benefit of the reader, we attach a map as an appendix to this opinion. The map, which reflects property ownership in late 2017, shows how the various properties are situated with each other and Makai Lane.
2 No. 37180-8-III Waggoner v. Stimson Lumber Co.
13. GENERAL PROVISIONS: .... (g) Attorney’s Fees. If Buyer, Seller, or any real estate licensee or broker involved in this transaction is involved in any dispute relating to any aspect of this transaction or this Agreement, each prevailing party shall recover their reasonable attorneys’ fees. This provision shall survive Closing.
Ex. D-102 at 4. Two months later, the Waggoners conveyed the property to the
McCormicks by statutory warranty deed. The deed did not mention Makai Lane or list
any easement in the area of the road.
In 2006, the McCormicks moved onto the property they bought from the
Waggoners. Peter McCormick also helped maintain Makai Lane. All of the residents on
the west side of Makai Lane used the road to access their properties. The Waggoners
used the Little Spokane River Road to access their property, but also used Makai Lane
weekly to visit Mr. Waggoner’s brother and sister-in-law, who lived just south of the
McCormicks.
From 2006 until 2012, there were no issues between the users of Makai Lane.
Everyone just “got along great.” Report of Proceedings (May 14, 2019) at 35.
In 2015, the Waggoners began building a shop on their property. Mrs. McCormick
complained to her husband that a construction worker was driving too fast on the private
3 No. 37180-8-III Waggoner v. Stimson Lumber Co.
road. Mr. McCormick spoke pointedly to Mr. Waggoner about this and this discussion
sparked the acrimony that led to this litigation.
Events underlying litigation
In August 2015, counsel for the McCormicks notified the Waggoners that,
“whatever permission, either express or implied, you believe that you had from the
McCormicks to use their property is hereby terminated.” Clerk’s Papers (CP) at 31. The
letter warned that any future use “will be considered an intentional and criminal trespass.”
CP at 31-32. In September 2015, the McCormick Family Trust2 sent a similar letter to the
Waggoners. The effect of these letters was to block the Waggoners’ use of Makai Lane
because the McCormicks owned the western portion and the McCormick Family Trust
owned the eastern portion. Nonetheless, the Waggoners continued using Makai Lane. In
May 2016, Louis and Barbara Waggoner sold their land to Carl and Jo Ellen Kostoff.
Trial court proceedings
In 2017, the Waggoners filed an action asserting a prescriptive easement over
Makai Lane and naming as defendants the Stimson Lumber Company, Peter and Linda
McCormick, the McCormick Family Trust, and Carl and Jo Ellen Kostoff. Soon after, the
2 The trustees are Peter McCormick’s brother and sister-in-law.
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Waggoners obtained an easement from the McCormick Family Trust over the eastern
portion of Makai Lane.
The McCormicks filed an answer and requested affirmative relief, including an
award of attorney fees under various theories. The Kostoffs filed an answer requesting
similar relief.
The Waggoners, having obtained easements that provided access over Makai Lane,
dismissed their prescriptive easement claim. After various motions and voluntary
dismissals, the claims remaining were the McCormicks’ and the Kostoffs’ counterclaims
against the Waggoners for their attorney fees. Those claims were based on
RCW 4.84.185, CR 11, the breach of the statutory warranties of quiet possession and the
duty to defend, and the attorney fee provision in the Waggoner-McCormick PSA.
Trial
The parties tried the matter to the court, which later issued detailed findings and
conclusions. The McCormicks and the Kostoffs do not assign error to any finding. Some
of the conclusions of law we set forth below:
4. This court finds as a matter of law that the [Waggoners] had a rational basis in fact for their prescriptive easement claim. 5. The [Waggoners] used the railroad grade for 10 years [after the 2005 conveyance] in an open and notorious manner, their use was continuous and uninterrupted, their use occurred over a uniform route now commonly referred to as Makai Lane, and the use occurred with the
5 No. 37180-8-III Waggoner v. Stimson Lumber Co.
knowledge of Defendants MCCORMICK, at a time when the Defendants MCCORMICK were able to assert and enforce their rights. 6. As to Defendants KOSTOFF, the [Waggoners] have established a rational basis in fact for their prescriptive easement claim . . . by way of tacking,[3] in that the [Waggoners’] maintenance and use of the KOSTOFFS[’] portion of the railroad grade has been consistent since 1988, when the [Waggoners] built the road now known as Makai Lane. 7. The [Waggoners] used the railroad grade for 10 years in an open and notorious manner, their use was continuous and uninterrupted, their use occurred over a uniform route now commonly referred to as Makai Lane, and the use occurred with the knowledge of Lou and Barbara Waggoner and then Defendants KOSTOFF, at a time when Lou and Barbara Waggoner and then Defendants KOSTOFF were able to assert and enforce their rights. 8. Most of the litigation has centered around the fourth element [for establishing a prescriptive easement], whether the use was adverse . . . . 9. This court finds as a matter of law, the [Waggoners] had a rational legal basis for their prescriptive easement claim and claim of adverse use.
CP at 480-81.
In addressing whether the lawsuit was frivolous under RCW 4.84.185, the trial
court cited and quoted Cuillier v. Coffin, 57 Wn.2d 624, 627, 358 P.2d 958 (1961). It
noted that Cuillier held that adverse use is more likely to be found where the user of the
road made the road and used it for the prescriptive period. Based on the fact that Mr.
3 The allusion to “tacking” is confusing. Because the Waggoners used Makai Lane for 10 years after they purchased the Pearson property, there is no need for them to “tack” onto the Pearsons’ prior use.
6 No. 37180-8-III Waggoner v. Stimson Lumber Co.
Waggoner made the road in 1988 (by pulling out railway spikes and widening it), the trial
court ruled that the Waggoners’ assertion that their use was adverse was not frivolous.
The trial court also denied the McCormicks’ other bases for requesting attorney
fees. With respect to their statutory warranty claims, the trial court ruled: (1) there was no
breach of quiet enjoyment because the Waggoners’ prescriptive easement claim did not
ripen until 10 years after the 2005 conveyance, and (2) there was no breach of duty to
defend because the Waggoners were not a third party asserting a claim against the
McCormicks. With respect to the 2005 PSA attorney fee provision, the trial court
dismissed the claim based on the six-year statute of limitations. Alternatively, it ruled
that the fee provision merged into the warranty deed.
The McCormicks and the Kostoffs timely appealed.
ANALYSIS
A. FRIVOLOUS ACTION COUNTERCLAIM
The McCormicks and Kostoffs contend the trial court erred in finding the
Waggoners’ prescriptive easement claim was not frivolous. We analyze the prescriptive
easement question before turning to frivolity.
7 No. 37180-8-III Waggoner v. Stimson Lumber Co.
Prescriptive easement
A person claiming a prescriptive easement must prove that the use was (1) open
and notorious, (2) over a uniform route, (3) continuous and uninterrupted for 10 years,
(4) adverse, and (5) with the owner’s knowledge at a time when they were able to enforce
their rights. Kunkel v. Fisher, 106 Wn. App. 599, 602, 23 P.3d 1128 (2001). We start
with the presumption that the use of another’s property is permissive, not adverse. Id. at
601. Implied permission arises in situations where “it is reasonable to infer that the use
was permitted by neighborly sufferance or acquiescence.” Roediger v. Cullen, 26 Wn.2d
690, 707, 175 P.2d 669 (1946).
We review whether a claimant has established the elements of a prescriptive
easement as a mixed question of fact and law. Gamboa v. Clark, 183 Wn.2d 38, 43-44,
348 P.3d 1214 (2015). We review the trial court’s findings of fact for abuse of discretion
and review de novo whether the facts as found establish a prescriptive easement. Id. at
44.
There are numerous policy reasons supporting the presumption of permissive use
between neighbors. Our Supreme Court has noted:
The law should, and does[,] encourage acts of neighborly courtesy; a landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights. It is only
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when the use of the path or road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy, that the landowner is called upon “to go to law” to protect his rights.
Id. at 48 (alterations in original) (internal quotation marks omitted) (quoting Roediger,
26 Wn.2d at 709).
In Roediger, beachfront community residents established a path via communal use
between their homes, which they communally maintained. 26 Wn.2d at 698. Many years
later, the trial court granted the public an easement. Id. at 701. The Supreme Court
reversed, reasoning, “the use of the pathway arose of out of mutual neighborly
acquiescence; that is to say, it was permissive in its inception, a mere mutual privilege or
license the benefits of which extended to the residents, and, of course, to their tenants and
their visitors.” Id. at 713.
In Gamboa, the Gamboas used a gravel road to access their home and alfalfa crop
and occasionally bladed and applied gravel to it. 183 Wn.2d at 41. A few years later, the
Clarks moved in nearby and began using the road to access and irrigate their grape crops.
Id. For many years, the parties were aware of, and made no objections to, each other’s
use of the road. Id. After a dispute, the trial court granted the Gamboas a prescriptive
easement. Id. We reversed, holding that the Gamboas failed to put forth evidence that
they interfered with the Clarks’ use in some manner and the record demonstrated
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noninterfering use of the roadway constructed by the Clarks’ predecessor. Id. at 42-43.
Our Supreme Court affirmed, confirming the presumption of permissive use and
clarifying its applicability on enclosed or developed lands when there is a reasonable
inference of neighborly acquiescence. Id. at 47. The court further held that to rebut the
inference, the claimant must present evidence that they interfered with the owner’s use of
the land in some manner, which could include laying out a road and regularly improving
and maintaining it. Id. at 51-52.
Frivolous action
Under RCW 4.84.185, a prevailing party in a civil action is entitled to seek fees for
defending a frivolous action. “‘A frivolous action is one that cannot be supported by any
rational argument on the law or facts.’” Hanna v. Margitan, 193 Wn. App. 596, 612, 373
P.3d 300 (2016) (quoting Rhinehart v. Seattle Times, Inc., 59 Wn. App. 332, 340, 798
P.2d 1155 (1990)). A court can make a fee award when, after considering the evidence
presented, it determines that “the position of the nonprevailing party was frivolous and
advanced without reasonable cause.” RCW 4.84.185. This decision falls squarely within
a trial court’s discretion. Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App.
183, 194, 69 P.3d 895 (2003) (quoting Walji v. Candyco, Inc., 57 Wn. App. 284, 290, 787
P.2d 946 (1990)). A defendant need not allege or prove a plaintiff had an improper
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purpose to meet the frivolous action standard. Kilduff v. San Juan County, 194 Wn.2d
859, 877, 453 P.3d 719 (2019); Eller v. E. Sprague Motors & R.V.’s, Inc., 159 Wn. App.
180, 192, 244 P.3d 447 (2010).
We use similar standards for determining whether a matter is frivolous under
RCW 4.84.185 as for imposing sanctions under CR 11. Escude, 117 Wn. App. at 193.
CR 11 sanctions deter baseless filings and curb abuses of the judicial system by punishing
those who file for improper purposes. Kilduff, 194 Wn.2d at 877; Stiles v. Kearney, 168
Wn. App. 250, 261, 277 P.3d 9 (2012). A baseless filing is one that is (1) not grounded in
fact, or (2) not warranted by (a) existing law, or (b) a good faith argument for the
alteration of existing law. Stiles, 168 Wn. App. at 261. An attorney who “‘failed to
conduct a reasonable inquiry into the factual and legal basis for the claim’” before
signing and filing a pleading may be sanctioned for baseless filing. Id. (quoting Bryant v.
Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992)).
Invoking the CR 11 standards, the McCormicks and the Kostoffs argue the
Waggoners’ prescriptive easement claim was frivolous because the Waggoners sold them
the land, warranted against defects, then claimed a defect in their favor and sought to
constructively evict them. They argue this speaks to an improper purpose. We disagree.
The Waggoners sued so they could continue using a road they built, maintained, and had
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used for nearly 30 years. Although their legal theory would not have prevailed, we see
nothing improper about the Waggoners bringing suit to maintain what they likely
perceived as the status quo.
The McCormicks and the Kostoffs also argue the Waggoners failed to inquire into
the law and overlooked the presumption of permissive use. We see no evidence of this.
The Waggoners’ attorney conducted a reasonable inquiry and concluded that Cuillier and
Gamboa sufficiently supported his clients’ claim—that because they built and maintained
the road, they did so adversely to the rights of all true owners. None of the reasons put
forth by the McCormicks convince us that the prescriptive easement claim was frivolous.
Our review of the findings and conclusions convinces us that the trial court
correctly understood the law of prescriptive easement and the important inference
favoring permissible use. This inference did not render the Waggoners’ prescriptive
easement claim frivolous, given that the Waggoners had evidence that arguably rebutted
the inference. We conclude that the trial court did not abuse its discretion in ruling that
the Waggoners’ claim was not frivolous.
12 No. 37180-8-III Waggoner v. Stimson Lumber Co.
B. INDEMNIFICATION COUNTERCLAIM
The McCormicks4 contend the trial court erred in dismissing their claim for
indemnification for breach of the statutory warranties of quiet possession and the duty to
defend. We disagree.
A statutory warranty deed contains both present and future warranties, including
five guarantees against title defects: (1) the warranty of seisin, (2) the warranty of right to
convey, (3) the warranty against encumbrances, (4) the warranty of quiet possession, and
(5) the warranty to defend. RCW 64.04.030. The first three are present covenants,
breached (if at all) at conveyance. Rowe v. Klein, 2 Wn. App. 2d 326, 329, 409 P.3d 1152
(2018). The latter two are future covenants, which are usually breached after conveyance
when a third party asserts a claim to the property. Id. The McCormicks properly focus on
the latter two covenants.
Warranty of quiet possession
The warranty of quiet possession, otherwise known as the warranty of quiet
enjoyment or the general warranty, is a future covenant that runs with the land. Rowe,
2 Wn. App. 2d at 335 (citing McDonald v. Ward, 99 Wash. 354, 358, 169 P. 851 (1918));
4 The Kostoffs purchased their property from Mr. Waggoner’s brother and sister- in-law, not the Waggoners. The Kostoffs therefore could not assert a breach of statutory warranty claim against the Waggoners.
13 No. 37180-8-III Waggoner v. Stimson Lumber Co.
18 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE:
TRANSACTIONS § 14.3, at 121 (2d ed. 2004). That warranty is an “assurance by the
grantor that the grantee and the grantee’s heirs and assigns shall enjoy [the land] without
interruption by virtue of paramount title, and that they shall not, by force of a paramount
title, be evicted from the land or deprived of its possession.” Foley v. Smith, 14 Wn. App.
285, 290-91, 539 P.2d 874 (1975). The warranty of quiet possession is breached when
the buyer is actually or constructively evicted by someone holding paramount title that
existed at the time of the conveyance. Id. at 291.
There are two reasons we affirm the trial court’s rejection of this warranty claim.
First, the Waggoners’ prescriptive rights, if any, did not exist at the time of the
conveyance. Second, the only relief sought by the McCormicks was an award of attorney
fees, and attorney fees are not awardable for the breach of any warranty covenant other
than a breach of the duty to defend. See Mellor v. Chamberlin, 100 Wn.2d 643, 650, 673
P.2d 610 (1983) (Rosellini, J., concurring). For these reasons we affirm the trial court’s
denial of this warranty claim.
Warranty to defend
The warranty to defend is a future covenant that no lawful, outstanding claim
against the property exists. Erickson v. Chase, 156 Wn. App. 151, 158, 231 P.3d 1261
14 No. 37180-8-III Waggoner v. Stimson Lumber Co.
(2010). “The warranty to defend obliges the grantor to defend the grantee against
subsequently asserted third party claims whether or not previously known.” Edmonson v.
Popchoi, 155 Wn. App. 376, 389, 228 P.3d 780 (2010), aff’d, 172 Wn.2d 272, 256 P.3d
1223 (2011). A breach of this future warranty occurs only where there is an actual or
constructive eviction under paramount title. Mastro v. Kumakichi Corp., 90 Wn. App.
157, 164, 951 P.2d 817 (1998).
There are two reasons we affirm the trial court’s rejection of this warranty claim.
First, the Waggoners did not have an outstanding claim against their own property when
they sold it to the McCormicks. Their prescriptive easement claim began accruing only
after the McCormicks purchased the land. Second, the Waggoners are not third parties.
C. THE PSA COUNTERCLAIM
The McCormicks contend the trial court erred in ruling that the six-year statute of
limitations barred recovery of attorney fees under their PSA and erred again by
misapplying the rule of merger. But there is a fundamental issue they fail to address.
The PSA authorizes a prevailing party in any dispute “relating to any aspect of this
transaction or this Agreement” to recover their reasonable attorney fees. Ex. D-102, at 4
(General Provisions, 13(g)). The McCormicks do not argue what aspect of the
transaction or the PSA relates to the Waggoners’ assertion of a prescriptive easement
15 No. 37180-8-III Waggoner v. Stimson Lumber Co.
claim. We note that the Waggoners’ claim did not even begin accruing until after the
parties signed the PSA. We doubt there is any aspect of the transaction or the PSA that
relates to this claim. Regardless, we will not scour several pages of small print in search
of a clause to invoke. See Satomi Owners Ass’n v. Satomi, LLC, 167 Wn.2d 781, 808,
225 P.3d 213 (2009) (RAP 10.3(a)(6) requires a brief to include adequate argument and
references to the relevant parts of the record.).
D. ATTORNEY FEES ON APPEAL
The McCormicks and the Kostoffs request an award of attorney fees and costs on
appeal. We deny their request because they did not prevail on appeal.
The Waggoners also request an award of attorney fees on appeal. In a conclusory
sentence, they describe the appeal as frivolous. A party requesting an award of attorney
fees must devote a section of their opening brief to the request for fees. RAP 18.1(b).
The Waggoners did not do this.
But more importantly, this appeal was not frivolous. An appeal is frivolous when
it raises “no debatable issues on which reasonable minds might differ and it is so totally
devoid of merit that no reasonable possibility of reversal exists.” Protect the Peninsula’s
Future v. City of Port Angeles, 175 Wn. App. 201, 220, 304 P.3d 914 (2013). We resolve
doubts of frivolity in favor of the appellant. Hanna, 193 Wn. App. at 615.
16 No. 37180-8-III Waggoner v. Stimson Lumber Co.
We question the relevance of Mr. Waggoner's road building in 1988 to his and his
wife's 2017 prescriptive easement claim. That claim relates to the Waggoner-Pearson
property, acquired by the Waggoners in 2005. There was no evidence that the Pearsons
adversely used Makai Lane. And nothing the Waggoners did from 2005 on rebutted the
presumption of permissiveness. Although this argument was not raised below or on
appeal, it deftly undermines the Waggoners' prescriptive easement claim ( for the
Waggoner-Pearson property).
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.
Lawrence-Berrey, J.
WE CONCUR:
Siddoway, A.CJ. Staab, J.
17 No. 37180-8-III Waggoner v. Stimson Lumber Co.
APPENDIX