Stony Meadows Homeowners Ass'n, Resp/cross App V. Reid And Eike Kley, App/cross-resp

• Court: Court of Appeals of Washington
• Decided: October 27, 2025
• Docket: 87264-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STONEY MEADOWS HOMEOWNERS No. 87264-8-I ASSOCIATION, a Washington nonprofit corporation, DIVISION ONE

Respondent / Cross-Appellant, UNPUBLISHED OPINION

v.

REID TEN KLEY AND EIKE TEN KLEY,

Appellants / Cross-Respondents.

FELDMAN, J. — Stoney Meadows Homeowners Association (the

Association) and Reid and Eike Ten Kley (the Ten Kleys) cross-appeal a series of

rulings regarding the ownership and use of a “Private Road” and “Reserve Strip”

(as defined below) situated in the Stoney Meadows subdivision (Stoney Meadows)

in Clark County, Washington. We affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.

I

The real estate comprising Stoney Meadows was previously owned by

Stoney Meadows, Inc., the Federal Land Bank of Spokane, William D. and Shirley

A. Huyette, and Robert W. and Donna R. Roberts. In 1989, they executed a plat

dedication creating Stoney Meadows and recorded the corresponding plat (the No. 87264-8-I

Plat) in Book H of Plats, page 454. The Plat depicts the following area of the

subdivision relevant to this appeal:

(Cropped from full plat.) This litigation primarily concerns the hatched area

between lots 19, 20, and 21—referred to herein as the Private Road—and the

reference to “1’ reserve strip” and associated arrow at the northern boundary of

that road—referred to herein as the Reserve Strip.

Sometime after the Plat was recorded, the Stoney Meadows Joint Venture

(Joint Venture) acquired ownership of Stoney Meadows. 1 The Joint Venture

executed a Declaration of Covenants, Conditions and Restrictions and

Establishment of the Homeowners Association for the Plat of Stoney Meadows

(the CC&Rs). The CC&Rs define “Common Area” as “all real property owned by

the Association for the common use and enjoyment of the owners” and clarify that

1 Although the record does not contain a deed conveying ownership of Stoney Meadows to the

Joint Venture, the parties do not dispute that the Joint Venture acquired ownership of Stoney Meadows (including the Private Road and Reserve Strip) at or around the time the Plat was recorded in 1989.

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“[t]he Common Area to be owned by the Association is described as Lot 17/1 of

the final Plat of Stoney Meadows Subdivision.” The CC&Rs also state each

homeowner “shall have a right and easement of enjoyment in and to the Common

Areas” and that the Association is responsible for maintaining the Common Areas

as “open space for the benefit of all owners.”

Thereafter, the Joint Venture began conveying lots in the subdivision to their

initial owners. In 1995, the Joint Venture executed a quit claim deed conveying to

the Association “Lot 17/1 of Stoney Meadows Subdivision as recorded in Book H

of Plats, page 454, Auditor’s Number 8905310191” (the Lot 17/1 Deed). Around

this same time, the Joint Venture transferred control of the Association to the

homeowners. Later, in 1997, the Joint Venture executed a statutory warranty deed

conveying to Douglas M. and Janet B. Smith “Lot 20, STONEY MEADOWS,

according to the plat thereof, recorded in Volume “H” of plats, page 454, records

of Clark County, Washington, TOGETHER with a 54 foot non-exclusive private

road and utility easement subject to Lots 19, 20, and 21 as disclosed on the plat

deed of Stoney Meadows” (the Lot 20 Deed). Stoney Meadows, Inc.

administratively dissolved in December 1998, and the Joint Venture ceased

operating by the mid-2000s.

After the homeowners assumed control of the Association, it and other

homeowners took various actions with respect to the Private Road. Between 1999

and 2000, the Association paid contractors to pave a portion of the Private Road

and add curbs to the paved portion. Additionally, the Association supplies

electricity to a streetlamp on the Private Road. The Association began hanging

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seasonal holiday decorations on this lamp in 2003, and it installed a fake camera

on the pole in 2004. By 2011, the Association had installed a “No Outlet” sign at

the entrance to the Private Road and a directional sign on the streetlamp stating

that NE 171st Avenue is a “Private Road.”

The paved portion of the Private Road ends approximately 107 feet south

of the northern boundary of the subdivision, and the parties refer to the unpaved

area as the Green Space. Sometime prior to 2017, a barbed wire fence was

installed across the width of the Private Road approximately 10 feet from the

northern border of the subdivision. In 2002, the owners of lots 20 and 21 agreed

to landscape the Green Space and connect it to the Association’s irrigation system

in exchange for the Association maintaining the Green Space. After the

landscaping was completed, the Association paid a contractor to mow the grass in

the Green Space weekly between March and October, maintain the trees and

shrubs in that area, and maintain the irrigation system. In 2007, the Association’s

Board of Directors (the Board) voted to stop paying for “maintenance” to the Private

Road after determining it was owned by the owners of lots 19, 20, and 21 and was

“legally private property rather than common areas as previously believed.” In

2009, the Board reversed course and voted to resume paying a contractor to

maintain the Green Space.

The Ten Kleys purchased lot 18 in 2017. In 2021, while Reid 2 was a

member of the Board, he informed the other members he was planning to

purchase approximately 20 acres of land immediately north of Stoney Meadows

2 Because appellants share the same last name, we refer to Reid by his first name for clarity.

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(the Northern Property) abutting the Reserve Strip and lots 17/1, 18, 19, and 20.

Before purchasing the Northern Property, Reid asked the Association for

“permission to use the private road section of NE 171st Ave” to access the

Northern Property. Although the Association and Ten Kleys were unable to reach

an agreement, the Ten Kleys proceeded with the purchase in early 2022.

In 2022, the Huyettes and Donna R. Roberts executed an agreement (the

Easement) that purports to grant the Ten Kleys “a perpetual easement for ingress,

egress and utilities over and across the following-described real property.” As

discussed further in section II.C below, the Easement then describes the subject

property by reference to the Plat of Stoney Meadows. The Easement also states

that it “is to run with the land and inure to the benefit of” the “Benefitted Property,”

which it identifies as the Northern Property. After recording the Easement, the Ten

Kleys constructed a gravel roadway connecting the paved portion of the Private

Road to the Northern Property and have arranged for trucks and other construction

vehicles to access the Northern Property using the Private Road.

After learning of the Easement, the Association filed a complaint on March

10, 2023 against the Ten Kleys and all members of the Joint Venture seeking a

judgment quieting title to the Private Road and Reserve Strip in favor of the

Association, either through the Lot 17/1 Deed or adverse possession, and

declaring the Easement null and void. Ten months later, on January 19, 2024, the

Association filed a motion for entry of default against the Huyettes, the Roberts,

Stoney Meadows, Inc., and the Joint Venture after they each failed to answer the

complaint. An attorney representing the Huyettes and the Roberts filed a response

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stating these defendants had “no objection to the proposed default order or having

a default judgment entered against [them] to remove the cloud of their potential

interest from title.” On February 16, 2024, the trial court granted the Association’s

motion and entered orders of default against the Huyettes, the Roberts, Stoney

Meadows, Inc. and the Joint Venture.

Meanwhile, the Association and the Ten Kleys (the only defendants who

answered the complaint) filed competing motions for summary judgment as to the

remaining claims as well as motions for reconsideration concerning the trial court’s

initial rulings. Additionally, the Association filed a motion for entry of a default

judgment against the defendants who had defaulted. Through a series of orders

(some of which modified prior orders), the trial court ruled: (1) the Association is

not the record owner of the private road via the Lot 17/1 Deed, (2) the Association

did not adversely possess the private road, (3) the Easement is valid but only

includes the Private Road and does not include the Reserve Strip, and (4) because

the Ten Kleys have no interest in the Reserve Strip and the other remaining

defendants defaulted, the Association had adversely possessed the Reserve Strip.

Consistent with these orders, the trial court entered a default judgment

quieting title to the Reserve Strip in favor of the Association. The order contains

findings that the Huyettes and Donna R. Roberts “have affirmatively disclaimed

any interest in the Reserve Strip and have stated their willingness to have a default

judgment entered against them to remove the cloud of their potential interest from

the title of the Reserve Strip.” Based on these findings and related conclusions,

the court quieted title to the Reserve Strip in favor of the Association. Thus, while

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the Ten Kleys prevailed with regard to the Private Road, the Association prevailed

with regard to the Reserve Strip.

Both parties appeal.

II

A. Lot 17/1 Deed

Seeking to undo the trial court’s determination that the Easement is valid

with regard to the Private Road, the Association argues the trial court erred by

concluding the Association did not previously acquire record title to the Private

Road via the Lot 17/1 Deed. The Association asserts, in other words, that the Joint

Venture could not have granted an easement over and through the Private Road

because any such rights belonged solely to the Association. Contrary to the

Association’s argument, the trial court correctly decided this issue.

We review the trial court’s summary judgment rulings de novo. David v.

Freedom Vans LLC, 4 Wn.3d 242, 248, 562 P.3d 351 (2025). Summary judgment

is governed by “‘a burden-shifting scheme.’” Welch v. Brand Insulations, Inc., 27

Wn. App. 2d 110, 114, 531 P.3d 265 (2023) (internal quotation marks omitted)

(quoting Bucci v. Nw. Tr. Servs., Inc., 197 Wn. App. 318, 326, 387 P.3d 1139

(2016)). “The moving party bears the initial burden ‘to prove by uncontroverted

facts that there is no genuine issue of material fact.’” Id. at 115 (quoting Jacobsen

v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977)). If the moving party meets its

burden of showing summary judgment may be appropriate, the burden shifts to the

nonmoving party to show “‘specific facts evidencing a genuine issue of material

fact for trial.’” Id. at 114 (quoting Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d

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665 (1995)). To the extent we separately review the trial court’s rulings regarding

the parties’ motions for reconsideration, such rulings are reviewed for an abuse of

discretion, which occurs when the decision is manifestly unreasonable or

discretion is exercised on untenable grounds or for untenable reasons. Worden v.

Smith, 178 Wn. App. 309, 322-23, 314 P.3d 1125 (2013).

“Every conveyance of real estate, or any interest therein, and every

contract creating or evidencing any encumbrance upon real estate, shall be by

deed.” RCW 64.04.010. We construe deeds “‘to give effect to the intentions of the

parties, and particular attention is given to the intent of the grantor.’” Newport

Yacht Basin Ass’n of Condo. Owners v. Supreme Nw., Inc., 168 Wn. App. 56, 64,

277 P.3d 18 (2012) (quoting Zunino v. Rajewski, 140 Wn. App. 215, 222, 165 P.3d

57 (2007)). “In general, we determine the intent of the parties from the language

of the deed,” which “is the best evidence of the intent of the original parties.” Id.

at 64-65. Thus, “where the plain language of the deed is unambiguous, extrinsic

evidence will not be considered.” Id. at 64.

Washington law generally imposes a “strict legal description requirement”

for deeds. Teklu v. Setayesh, 21 Wn. App. 2d 161, 162, 505 P.3d 151 (2022).

Under this rule, “‘a document that transfers an interest in land must describe the

land by its full legal description’ to satisfy the statute of frauds.” Id. at 165 (quoting

18 W ILLIAM B. STOEBUCK & JOHN W. W EAVER, WASHINGTON PRACTICE: REAL ESTATE:

TRANSACTIONS § 13.3, at 78 (2d ed. 2004). This description of the land must be

“‘sufficiently definite to locate it without recourse to oral testimony, or else it must

contain a reference to another instrument which does contain a sufficient

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description.’” Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995) (quoting

Bigelow v. Mood, 56 Wn.2d 340, 341, 353 P.2d 429 (1960)).

A plat is one such “another instrument” to which a deed may refer when

describing the conveyed real estate. See Cook v. Hensler, 57 Wash. 392, 397,

107 P. 178 (1910) (observing the “general rule . . . that reference to a plat or map

in a deed of conveyance makes it a part thereof”). “In construing a plat, the

intention of the dedicator controls.” Roeder Co. v. Burlington N., Inc., 105 Wn.2d

269, 273, 714 P.2d 1170 (1986). “That intention is to be determined from all the

marks and lines appearing on the plat.” Id. Courts construe plats “‘as a whole in

order that the intention of the party may be ascertained, and every part of the

instrument be given effect” so that “no part of the plat[] is to be rejected as . . .

meaningless, if it can be avoided.’” Cummins v. King County, 72 Wn.2d 624, 627,

434 P.2d 588 (1967) (quoting 26 C.J.S. Dedications § 49 at 519-20). “If the plat is

unambiguous, the intent, as expressed in such plat, cannot be contradicted by

parol evidence.” Selby v. Knudson, 77 Wn. App. 189, 194, 890 P.2d 514 (1995).

Here, the Lot 17/1 Deed unambiguously conveyed only Lot 17/1—not the

Private Road—to the Association. The Lot 17/1 Deed does not refer to the Private

Road but, instead, refers to “Lot 17/1 of Stoney Meadows Subdivision as recorded

in Book H of Plats, page 454, Auditor’s Number 8905310191.” Additionally, the

Plat to which the Lot 17/1 Deed refers did not, as the Association claims,

“incorporate the Private Road as part of Lot 17/1.” As shown on the face of sheet

1 of the Plat, the Private Road is not located in or adjacent to lot 17/1 but is

separated from lot 17/1 by lots 18 and 19. And sheet 2 of the Plat—depicting a

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larger area of Clark County encompassing the subdivision and surrounding land—

separates the subdivision into two relevant areas: (1) “Stoney Meadows lots 1-16

& 18-40” and (2) “lot 17/1 (open space) a tract to be owned in common.” When

comparing sheets 1 and 2 of the Plat, the Private Road is clearly situated in the

first area, which confirms it is not part of lot 17/1.

Had the Joint Venture intended at the time it prepared the Plat for Lot 17/1

to include the Private Road or for the Association to otherwise acquire a present

interest in the Private Road, it would have so stated on the Plat. See Roeder, 105

Wn.2d at 273-75 (landowner, a railroad company, reserved fee simple title to an

80-foot strip of land by stating in the plat that this land was “Reserved for Railroad”).

By stating that the Private Road was “reserved” for “future dedication,” the Joint

Venture was apparently expressing an intention to retain ownership of the Private

Road and convey it “as part of lot 17/1” at some later point in time. But the Joint

Venture failed to convey such an interest to the Association via the Lot 17/1 Deed

or any other instrument, indicating the Joint Venture did not intend to do so. Based

on the unambiguous language of the Lot 17/1 Deed and the Plat to which it refers,

the trial court did not err in concluding on summary judgment that the Association

did not acquire record title to the Private Road via the Lot 17/1 Deed. The

Association’s contrary argument thus fails.

B. Adverse Possession

Next, both parties challenge the trial court’s adverse possession rulings.

The Ten Kleys, for their part, argue the trial court erred in “awarding title to the

reserve strip to the Association” by adverse possession. And the Association, for

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its part, claims the trial court erred in concluding it did not adversely possess the

Private Road. As explained below, the Ten Kleys’ argument is persuasive and the

Association’s is not; the trial court correctly concluded the Association had not

adversely possessed the Private Road but erred in concluding it had adversely

possessed the Reserve Strip.

“In order to establish a claim of adverse possession, there must be

possession that is: (1) open and notorious, (2) actual and uninterrupted, (3)

exclusive, and (4) hostile.” ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774

P.2d 6 (1989). Additionally, “[p]ossession of the property with each of the

necessary concurrent elements must exist for the statutorily prescribed period of

10 years.” Id. The party claiming to have adversely possessed the property bears

the burden of establishing each element by a preponderance of the evidence. Teel

v. Stading, 155 Wn. App. 390, 394, 228 P.3d 1293 (2010). “Adverse possession

is a mixed question of law and fact: whether the essential facts exist is for the trier

of fact, but whether the facts constitute adverse possession is for the court to

determine as a matter of law.” Lingvall v. Bartmess, 97 Wn. App. 245, 253, 982

P.2d 690 (1999). Where the essential facts are undisputed, a court may determine

as a matter of law whether a claimant has satisfied the elements of adverse

possession. Ofuasia v. Smurr, 198 Wn. App. 133, 143-44, 392 P.3d 1148 (2017).

1. The Private Road

The Association failed to prove its possession of the Private Road was

exclusive. “‘[T]he exclusivity element means that an adverse possessor may not

share possession of the area claimed with the true owner and, though less critical,

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not too much with third persons who are there without the adverse possessor’s

consent.’” Michel v. City of Seattle, 19 Wn. App. 2d 783, 790-91, 498 P.3d 522

(2021) (quoting 17 STOEBUCK & W EAVER, REAL ESTATE: PROPERTY LAW § 8.19, at

541). “Adverse possession must be as exclusive as one would expect of a titled

property owner under the circumstances.” Harris v. Urell, 133 Wn. App. 130, 138,

135 P.3d 530 (2006). “Important to a consideration of what use an owner would

make are the nature and location of the land.” Crites v. Koch, 49 Wn. App. 171,

174, 741 P.2d 1005 (1987). A claimant cannot establish exclusivity where it “fails

to negate instances of use by others.” ITT Rayonier, 112 Wn.2d at 759; see also

17 STOEBUCK & W EAVER, supra, § 8.19, at 542 (“It seems clear that a general

sharing of possession with a group of third persons far smaller than the public, or

even with one other person who uses independently from the adverse claimant,

can prevent exclusivity.”).

Here, the record establishes the Association’s possession of the Private

Road was not exclusive because it shared possession with innumerable third

persons. The owners of lots 19, 20, and 21 use the Private Road to access their

lots. Additionally, the record indicates members of the public regularly travel over

the paved portion of the Private Road. Although the Association has installed signs

near the entrance of the Private Road stating “No Outlet” and “Private Road,” these

signs do not state that only the Association or its members are allowed to use the

Private Road. In contrast, the Association has posted several signs at the entrance

to the common area on lot 17/1 stating that only members of the Association are

allowed to use the driveway and greenspace on lot 17/1. Moreover, multiple

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homeowners testified that they believed they had a right to access the Private

Road without first obtaining permission from the Association.

Similarly, the record shows third persons used the Green Space without the

Association’s permission. As with the paved portion of the Private Road, there

were no signs or structures (such as a fence) preventing homeowners or members

of the public from accessing the Green Space. Additionally, the developments to

the Green Space between 1999 and 2000 were paid for and constructed by the

owners of lots 20 and 21—not the Association. Although the Association owns

and maintains an irrigation system that supplies water throughout the subdivision,

the irrigation system that supplies water to the Green Space was installed by the

owners of lots 20 and 21. The record also indicates the owner of lot 20 can decide

when to turn off irrigation to the Green Space. This evidence shows that, rather

than acquiring exclusive possession of the Green Space, the Association entered

into an agreement with the owners of lots 20 and 21 in which those owners agreed

to develop the Green Space in exchange for the Association maintaining the area

in the future. In short, the Association cannot establish exclusivity over the Private

Road because it has not taken steps to prevent anyone—whether members of the

Association or the general public—from using that area as they please.

The Association contends “[t]ransitory unpermitted use by third parties

cannot defeat the Association’s otherwise exclusive possession.” In support of this

proposition, the Association relies on Michel, 19 Wn. App. 2d 783, but that reliance

is misplaced. In Michel, we held that the city had adversely possessed a tract of

land (designated “tract 44”) because it “managed the land as a true owner would

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under the circumstances,” namely by using it for “electrical distribution with power

poles” and not “shar[ing] possession . . . with” the true owner. Id. at 791. Despite

the city having shared possession of the property with third parties, we concluded

the city’s possession was nonetheless exclusive because it had “manag[ed]” these

third parties’ uses of the property by “consent[ing] to third persons’ uses of tract 44

for road access, recreation, parks, and trails”; “grant[ing] permits” to neighbors “for

use of tract 44 to garden and access the road”; and “manag[ing] other third parties’

access to and uses of tract 44, including lake access, fishing, and other recreation.”

Id. Unlike the adverse claimant in Michel, the Association has not managed or

prohibited its members’ or the public’s use of the Private Road or Reserve Strip.

Next, the Association claims it can establish adverse possession based on

the actions of its members—the homeowners in the subdivision—because “it is an

entity established for the benefit of members of a community, which can own and

maintain real property separate from its members’ directly-owned property.” Thus,

according to the Association, its “‘exclusive’ use of a Private Road would not be

defeated through the routine use by community members, their guests and

invitees, or use by the Association’s invitees (e.g., landscaping and other

maintenance personnel).” We rejected a similar argument in Timberlane

Homeowners’ Ass’n v. Brame, 79 Wn. App. 303, 307, 901 P.2d 1074 (1995).

There, a homeowners’ association demanded that the homeowners of a lot remove

a fence encroaching onto a common area, but the homeowners refused and

claimed they had acquired title to the disputed property by adverse possession.

Id. at 306. The association filed a complaint seeking to quiet title to the common

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area and claimed it had standing to file such a complaint based on its declaration

of covenants, conditions, and restrictions, which granted every member of the

association a right and easement of enjoyment in and to the common areas. Id.

at 306-07. On appeal, we rejected the association’s argument and concluded it

lacked standing to “enforce its members’ property rights.” Id. at 309.

Although Timberlane did not involve an adverse possession claim brought

by a homeowners’ association, its reasoning is applicable in the instant dispute.

While the CC&Rs allow and require the Association to maintain common areas, it

does not authorize the Association to acquire new common areas on its own

volition or to maintain an action to enforce its members’ rights to enjoy common

areas in the subdivision. Notably, the CC&Rs indicate that the only common area

to be owned by the Association is lot 17/1. The Association has not cited any

cases in which a homeowners’ association has adversely possessed real estate

located in a subdivision. See Donner v. Blue, 187 Wn. App. 51, 61, 347 P.3d 881

(2015) (“Where no authorities are cited in support of a proposition, the court is not

required to search out authorities, but may assume that counsel, after diligent

search, has found none.”) (internal quotation marks omitted). At bottom, while the

Association acts on behalf of the homeowners in its subdivision, it is a separate

legal entity that must establish the elements of adverse possession based on its

possession of the disputed real estate.

The Association also contends it is entitled to adverse possession by default

because the party who purportedly holds fee simple title to the Private Road—the

Joint Venture—“did not appear or defend any such interest, and its direct and

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indirect members disavowed any interest.” But even if a party could establish

adverse possession by default (the Association cites no authority so holding), “a

trial court is not compelled by the entry of an order of default to subsequently enter

a default judgment.” Kaye v. Lowe’s HIW, Inc., 158 Wn. App. 320, 335, 242 P.3d

27 (2010). Further, it is axiomatic that “[a] party seeking to quiet title must succeed

on the strength of its own title, and cannot prevail based on the weakness of the

other party’s title.” Wash. Secs. & Inv. Corp. v. Horse Heaven Heights, Inc., 132

Wn. App. 188, 195, 130 P.3d 880 (2006). Given the above analysis rejecting the

Association’s two legal bases underlying its claim of title to the Private Road (the

Lot 17/1 Deed and adverse possession), the Association’s claim of ownership over

the Private Road by default fails as a matter of law. The proper method by which

the Association may acquire fee simple title to the Private Road from the Joint

Venture is by a deed.

Nor are we persuaded by the Association’s argument that the Ten Kleys

lack standing to oppose its adverse possession claim. “‘A party has standing to

raise an issue if it ‘has a distinct and personal interest in the outcome of the case.’”

Timberlane, 79 Wn. App. at 307 (quoting Erection Co. v. Dep’t of Labor & Indus.,

65 Wn. App. 461, 467, 828 P.2d 657 (1992)). As discussed in section II.C below,

the Easement is valid (at least with respect to the Private Road). And because the

easement granted therein is “perpetual” and “is to run with the land,” it “‘is not a

mere privilege to be enjoyed by the person to whom it is granted or by whom it is

reserved. It passes by deed of such person to his grantee and follows the land

without any mention whatever.’” Heg v. Alldredge, 157 Wn.2d 154, 161, 137 P.3d

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9 (2006) (quoting Winsten v. Prichard, 23 Wn. App. 428, 431, 597 P.2d 415 (1979))

(internal quotation marks omitted). As discussed below, the Ten Kleys were

granted an interest in at least some of the real estate to which the Association

seeks to acquire ownership, and granting the Association’s requested relief would

deprive the Ten Kleys of that property interest. For these reasons, the trial court

correctly rejected the Association’s adverse possession claim with respect to the

Private Road and granted summary judgment in favor of the Ten Kleys on that

issue.

2. The Reserve Strip

The Association’s adverse possession claim as to the Reserve Strip fails on

a more fundamental level, which is that it has not established a genuine issue of

material fact as to whether it possessed the Reserve Strip at all. “‘[I]t is not possible

to be in adverse possession without physical occupation . . . .’” Michel, 19 Wn.

App. 2d at 790 (quoting 17 STOEBUCK & W EAVER, supra, § 8.9, at 517). The area

designated on the Plat as the Reserve Strip is located north of the barbed wire

fence situated approximately 10 feet from the northern boundary to the subdivision.

While there is evidence the Association maintained the area south of this fence in

the Green Space, the Ten Kleys produced other evidence—unrebutted by the

Association—that the area north of this fence “was never landscaped as part of

the other green space landscaping that took place on the Private Road in

approximately 2001 or 2002” and that the Association’s landscaper “has never

performed landscaping in the isolated area between the fence and the northern

property line.”

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The Association contends it can adversely possess “overgrown property,”

such as the Reserve Strip, without physical possession so long as it “treat[s] it the

way that a true owner would treat overgrown property.” In support of this argument,

the Association cites to Heriot v. Lewis, 35 Wn. App. 496, 505, 668 P.2d 589

(1983), where a claimant successfully adversely possessed land that was

“overgrown with berry vines.” The court held that the claimant “demonstrated

sufficient acts of possession” when considering the nature and character of the

land because he “eject[ed] . . . intruders” from it, specifically by removing posts

that were set in the ground by his neighbor. Id. But as explained in section B.1

above, the Association failed to take any action to eject or otherwise exclude others

from the Reserve Strip or the Private Road. Moreover, the Association does not

claim to have constructed the fence near the Reserve Strip. Because the

Association has failed to establish it possessed the Reserve Strip at all, let alone

that such possession was exclusive, Heriot is distinguishable.

The trial court nonetheless concluded the Association had adversely

possessed the Reserve Strip because the Ten Kleys did not acquire an easement

over the Reserve Strip via the Easement and, therefore, “do not have a basis to

oppose the [Association’s] ownership claim.” As discussed in section B.1 above,

the fact that the other defendants have defaulted does not mandate the entry of a

default judgment in favor of the Association on its adverse possession claims. See

Kaye, 158 Wn. App. at 326. And as discussed in section C.2 below, there are

genuine issues of material fact as to whether the Easement granted the Ten Kleys

an easement over the Reserve Strip. Thus, for present purposes, the Ten Kleys

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have standing to oppose the Association’s adverse possession claim regarding the

Reserve Strip. The trial court erred in ruling otherwise.

C. Easement

Seeking to reverse the trial court’s ruling in favor of the Association with

regard to the Reserve Strip, the Ten Kleys argue the court erred in concluding on

summary judgment that the Easement “does not provide the . . . Ten Kleys with

any right to use the reserve strip.” The parties assert several interrelated

arguments regarding this issue, which we address as follows: first, we decide

whether the Easement is valid; and second, we address its scope. Because we

conclude the Easement is valid and there are genuine issues of material fact as to

whether it extends to the Reserve Strip, we agree with the Ten Kleys that the trial

court erred in deciding this issue in the Association’s favor on summary judgment.

1. Validity 3

The Association argues that even if the Joint Venture retained ownership of

the Private Road at the time the Easement was executed in 2022, the trial court

erred in concluding the Easement is valid because (a) its execution “is inconsistent

with . . . winding up” the dissolved Joint Venture and (b) the Huyettes and Donna

3 The Ten Kleys argue for the first time on appeal that the Association “lacks standing to dispute

the validity of the Easement because it is not a party to the Easement and it has no interest in the dominant estate.” We decline to address the issue because it was not raised in the summary judgment proceedings below. See Cano-Garcia v. King County, 168 Wn. App. 223, 248, 277 P.3d 34 (2012) (“Issues and contentions neither raised by the parties nor considered by the trial court when ruling on a motion for summary judgment may not be considered for the first time on appeal.”). Additionally, unlike Williams v. City of Spokane, 199 Wn.2d 236, 246, 505 P.3d 91 (2022), which holds we have discretion in appropriate cases to address standing for the first time on appeal, determining this issue would require the resolution of factual issues, such as whether the Association acquired an interest in the Private Road and/or Reserve strip during the pendency of this litigation when the owners of lots 19, 20, and 21 and the Association executed and recorded a document entitled “Quitclaim and Confirmation of Rights,” the stated purpose of which was “to clarify the ownership” of the Private Road and Reserve strip. The trial court may address this issue, if and as appropriate, if properly raised on remand.

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R. Roberts lacked authority to execute the Easement on behalf of the Joint

Venture. As to both arguments, we disagree.

The Association’s first argument—that execution of the Easement “is

inconsistent with . . . winding up” the dissolved Joint Venture—is contrary to

controlling legal principles. A joint venture “is similar to a partnership but it is limited

to a particular transaction or project.” Pietz v. Indermuehle, 89 Wn. App. 503, 510,

949 P.2d 449 (1998). “[P]artnership law generally applies to joint ventures as well.”

Id. A partnership is “an association of two or more persons to carry on as co-

owners a business for profit formed under RCW 25.05.055, predecessor law, or

comparable law of another jurisdiction.” RCW 25.05.005(6). “Each partner is an

agent of the partnership for the purpose of its business” and may bind the

partnership through their actions. RCW 25.05.100(1). Additionally, “partnership

property held in the name of the partnership may be transferred by an instrument

of transfer executed by a partner in the partnership.” RCW 25.05.105(1)(a).

The parties agree the Joint Venture was dissolved at the time it executed

the Easement in 2022 because it had sold all of the residential lots in the

subdivision and transferred governance of the Association to the homeowners.

See RCW 25.05.300(2)(c) (stating that a partnership for a particular undertaking is

“dissolved, and its business must be wound up,” upon “completion of the

undertaking”). “[A] partnership continues after dissolution only for the purpose of

winding up its business.” RCW 25.05.305(1). A partner “may participate in winding

up the partnership’s business” (RCW 25.05.310(1)), and the partnership is bound

by a partner’s act after dissolution that “[i]s appropriate for winding up the

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partnership business” (RCW 25.05.315(1)). RCW 25.05.310(3) lists several

actions that may be performed by a “person winding up a partnership’s business,”

including “dispose of and transfer the partnership’s property” and “perform other

necessary acts.”

Given the broad range of activities encompassed by these winding up

statutes, we conclude the Easement was validly executed for the purpose of

winding up the business of the Joint Venture. Although the Joint Venture had

dissolved, it continued “for the purpose of winding up its business.” RCW

25.05.305(1). The original purpose of the Joint Venture was to develop Stoney

Meadows. In 2022, the Joint Venture’s sole remaining connection to the Stoney

Meadows subdivision was its claim of ownership of the Private Road and Reserve

Strip. Granting an easement for ingress and egress over this area constitutes a

“dispos[al] of and transfer [of] the partnership’s property” or, at a minimum, an

“other necessary act[].” RCW 25.05.310(3). Accordingly, contrary to the

Association’s argument, the Easement was validly executed for the purpose of

winding up the business of the Joint Venture.

The Association’s second argument—that the trial court erroneously

concluded the Huyettes and Donna R. Roberts had authority to execute the

Easement on behalf of the Joint Venture—also fails. The Easement states it was

executed by the Joint Venture and identifies the grantors as “WILLIAM D.

HUYETTE and SHIRLEY A. HUYETTE, husband and wife, and DONNA R.

ROBERTS, the only surviving shareholder or officer of STONEY MEADOWS,

INC., a dissolved Washington corporation, all of whom are the only members of

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STONEY MEADOWS JOINT VENTURE, Declarant of the plat of Stoney Meadows

Subdivision.” It is undisputed that prior to its dissolution, the Joint Venture was

comprised of William D. Huyette, Shirley A. Huyette, and Stoney Meadows, Inc.

Although Stoney Meadows, Inc. is a dissolved corporation, it can properly take

actions to wind up its business. See RCW 23B.14.050(1)(e) (stating that “[a]

dissolved corporation continues in corporate existence but may not carry on any

business except that appropriate to wind up and liquidate its business and affairs,”

including “[d]oing every other act necessary to wind up and liquidate its business

and affairs”). It did so here.

The Association nevertheless contends the Easement is invalid because

the signatories did not “denote[] on their signature lines[] that they were signing in

their capacity as a member of the Joint Venture or as an officer/director of [Stoney

Meadows, Inc.].” In support of this argument, the Association cites to several

cases in which courts have imposed personal liability on persons who have signed

contracts purportedly on behalf of a principal. 4 These cases are inapposite

because, unlike the signatories in these cases, the grantors of the Easement are

not attempting to escape personal liability. And neither the Joint Venture nor the

grantees (the Ten Kleys) are seeking to invalidate or void the transaction. Thus,

the trial court did not err in concluding the Easement was validly executed by the

Joint Venture.

4 Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692, 952 P.2d 590 (1998) (personal

guaranty of corporation’s commercial lease); W. Mach. Co. v. Nw. Improvement Co., 254 F.2d 453 (9th Cir. 1957) (contract for sale and purchase of coal washing machinery); Cas. Co. of Am. v. Beattie, 75 Wash. 166, 134 P. 817 (1913) (liability policy of insurance); Karatofski v. Hampton, 135 Wash. 139, 237 P. 17 (1925) (“loggers’ liens”).

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2. Scope

Having concluded the Easement is valid, we turn to its scope. “The intent

of the original parties to an easement is determined from the deed as a whole.”

Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).

Courts may not consider extrinsic evidence if the plain language of the easement

is unambiguous. Id. But if ambiguity exists, “extrinsic evidence is allowed to show

the intentions of the original parties, the circumstances of the property when the

easement was conveyed, and the practical interpretation given the parties’ prior

conduct or admissions.” Id.

The Easement here states that the grantors “declare, grant and convey” to

the Ten Kleys “as owners of the property described hereinbelow as the Benefitted

Property, a perpetual easement for ingress, egress and utilities over and across

the following described real property”:

THAT PORTION OF THE PLAT OF STONEY MEADOWS, ACCORDING TO THE PLAT THEREOF, RECORDED IN VOLUME “H” OF PLATS, PAGE 454, RECORDS OF CLARK COUNTY, WASHINGTON THAT IS ADJACENT TO LOTS 19, 20, AND 21 OF SAID PLAT, AND LABELED ON SAID PLAT AS “54’ NONEXCLUSIVE PRIVATE ROAD & UTILITY EASEMENT RESERVED FOR FUTURE DEDICATION AS PART OF LOT 17/1.”

Because the Easement describes the easement by reference to the Plat, we may

refer to the Plat in determining the meaning of the plain language of the Easement.

See Cook, 57 Wn. at 397 (observing the “general rule . . . that reference to a plat

or map in a deed of conveyance makes it a part thereof”).

The language of the Easement is ambiguous as to whether the grantors

intended to include the Reserve Strip in the real estate described therein. The Plat

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contains separate notes and markings referring to the “1’ reserve strip” and the

“54’ foot . . . private road & utility easement.” But the Easement does not refer to

the Reserve Strip by name and, instead, only refers to the “portion of the plat” that

is “adjacent to lots 19, 20, and 21” and labeled as the “54’ nonexclusive private

road.” This language indicates the Reserve Strip is not included in the real estate

described in the Easement. Yet other language suggests the opposite. The

Easement expressly states that it is to “inure to the benefit of” the Northern

Property, that the Ten Kleys are the owners of the Northern Property, and that the

purpose of the Easement is “for ingress, egress and utilities” over the described

real estate. But the Plat indicates the Ten Kleys cannot access the Northern

Property across the Private Road without also traversing the Reserve Strip. This

language in the Easement indicates that either (a) the grantors inadvertently

omitted the Reserve Strip from the Easement or (b) the Reserve Strip is part of the

“54’ private road” and, therefore, is encompassed by the Easement.

Because an ambiguity exists in the language of the Easement, we may rely

on extrinsic evidence to “show the intentions of the original parties, the

circumstances of the property when the easement was conveyed, and the practical

interpretation given the parties’ prior conduct or admissions.” Sunnyside Valley,

149 Wn.2d at 880. But this extrinsic evidence, too, fails to clarify the parties’ intent.

The Reserve Strip is not visible to the naked eye or demarcated by physical

boundaries. Nor is the Reserve Strip identified by name in any deed in the record,

which suggests the Joint Venture retained ownership over the Reserve Strip after

platting the subdivision. But a litigation guarantee prepared by Old Republic

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National Title Insurance Company (apparently procured by the Ten Kleys in

anticipation of executing the Easement) states that as of February 7, 2022, title to

the following described land was vested in the Joint Venture:

THE NORTHERN 270.23 FEET OF NE 171ST AVENUE LYING WITHIN STONEY MEADOWS AS RECORDED UNDER BOOK “H” OF PLATS, PAGE 454, RECORDS OF CLARK COUNTY, WASHINGTON.

EXCEPT A 1 FOOT RESERVE STRIP AS SHOWN ON THE FACE OF THE PLAT.

This evidence suggests the Joint Venture did not own fee simple title to the

Reserve Strip in 2022 and the Easement does not include that land.

Additionally, William D. Huyette has made various conflicting statements

over the last two decades regarding the Joint Venture’s interest in the Private Road

and Reserve Strip. In 2006, he told the then-president of the Association’s Board

that “the Private Road was owned by the owners of Lots 19-21, that [the Joint

Venture] had been dissolved for years, and that he wanted nothing to do with

Stoney Meadows.” And when William D. Huyette was asked in his October 2023

deposition whether the Joint Venture intended to continue to own the Private Road

after all the lots were sold and houses built, he stated the Joint Venture “would not

have any interest in any part of the development” following expiration of the

“warranty period,” which he defined as a period of 7 to 10 years after the last lot

was sold. (Emphasis added.) William D. Huyette also testified that “it was not [his]

intent for either [himself] or Stoney Meadows Joint Venture to retain a residual

interest” in the subdivision. Yet in 2022, he and the other members of the Joint

Venture executed the Easement, indicating he believed the Joint Venture retained

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some interest in the Private Road and possibly in the Reserve Strip. When asked

at his deposition why he executed the Easement, William D. Huyette replied, “Just

an attempt to help Mr. Ten Kley access his property.”

In Kelley v. Tonda, 198 Wn. App. 303, 393 P.3d 824 (2017), a case involving

a similarly confounding chain of title to disputed real estate, our court reversed the

trial court’s summary judgment rulings and remanded for trial. In that case, Kelley

filed an action against the Tondas, his neighbors, asserting that a disputed gravel

road near their properties was not a public right-of-way. 198 Wn. App. at 310. At

issue were two writings pertaining to the disputed real estate. The first document

was a 1907 agreement in which a railroad company agreed to dedicate the real

estate to the county for public road purposes in exchange for the county’s

agreement to vacate and discontinue its use of other land in the future. Id. at 314.

The second document was a 1908 deed executed “in pursuance of” the 1907

agreement in which the railroad company granted, conveyed, and dedicated the

same real estate to the county “so long as” the county used it for the purposes of

public roads or highways. Id. at 315-17. The trial court granted summary judgment

in favor of the Tondas after concluding the undisputed evidence showed the 1907

writing conveyed a right-of-way to the county and the 1908 deed was ineffective at

restricting or conditioning the county’s use of the land. Id. at 318.

On appeal, we reversed and remanded for trial because “[t]he parties’ intent

in this matter is an issue of fact, unresolvable by summary judgment.” Id. at 318.

We initially observed that summary judgment is not warranted “‘in situations where,

though evidentiary facts are not in dispute, different inferences may be drawn

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therefrom as to ultimate facts such as intent.’” Id. at 311 (quoting Preston v.

Duncan, 55 Wn.2d 678, 681-82, 349 P.2d 605 (1960)). In analyzing the parties’

arguments, we noted “[t]he mixed language of the 1907 writing—seemingly

contemplating both present and future conveyances, obligations, and conditions—

obfuscates the intent of the parties.” Id. at 317. We then considered “the context

of the entire transaction” and concluded the parties’ actions, namely the execution

of the 1908 deed, gave “rise to an inference that the parties intended to convey an

interest in the land.” Id. When considering these “competing inferences” in “the

light most favorable to the nonmoving party,” we concluded summary judgment

was inappropriate on the issue of which document of conveyance granted an

interest in the land to the county. Id. at 318. Similarly, depending on which

document conveyed an interest in the land to the county, we observed there were

“competing inferences regarding the type of interest that was conveyed” in the

1907 agreement or 1908 deed. Id. at 320-21. We noted that for both of these

issues, the parties’ intent “may be illuminated by additional evidence presented on

remand.” Id.

Here, too, the Easement and context of the entire transaction give rise to

competing inferences regarding the parties’ intent. It is possible that the Private

Road and Reserve Strip are separate parcels of land that were both owned by the

Joint Venture when it executed the Easement but, either purposefully or

inadvertently, the Joint Venture omitted the Reserve Strip from the Easement.

Alternatively, it is possible that the Reserve Strip is located within the hatched area

marked on the Plat as the “private road” and, therefore, intended by the Joint

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Venture to be encompassed within the real estate described in the Easement. Like

in Kelley, “[t]he parties’ intent in this matter is an issue of fact, unresolvable by

summary judgment.” Id. at 318. 5

In sum, because there are genuine issues of material fact as to whether the

Easement granted the Ten Kleys an easement for ingress, egress, and utilities

over the Reserve Strip, the trial court erred in deciding this issue on summary

judgment.

D. Attorney fees

The Ten Kleys argue the trial court erroneously denied their motion for

attorney fees under RCW 7.28.083(3). The statute 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 prevailing party if, after considering all the facts, the court determines such an award is equitable and just.

Applying this statute, the trial court denied the Ten Kleys’ request for attorney fees

for three reasons, which we address in turn below.

5 Nor do the parties cite any legal authority that resolves the ambiguity surrounding the Reserve

Strip. There are no Washington statutes or cases addressing reserve strips. Thurston County, Code 18.08.240 defines the term as “a parcel of land located usually at the edge of a subdivision for the purpose of restricting access from the end or side of a street.” Decisions from other states shed limited light on the issue. See, e.g., Maroney v. City of Malvern, 899 S.W.2d 476, 478 (Ark. 1995) (holding developer retained ownership of reserve strip despite subsequent enactment of ordinance prohibiting reserve strips); J.C. Penney Co. v. Andrews, 386 N.E.2d 923 (Ill. Ct. App. 1979) (holding that landowner’s reservation of two-foot-wide strip of land to display advertising during development of subdivision did not violate public policy). The Texas Supreme Court has aptly observed, “It is well known that separate ownership of long narrow strips of land, distinct from the land adjoining on each side, is a fruitful source of litigation and disputes.” Cantley v. Gulf Production Co., 143 S.W.2d 912, 914 (Tex. 1940). To avoid such scenarios, Texas courts “presume[] that a grantor has no intention of reserving a fee in a narrow strip of land adjoining the land conveyed when it ceases to be of use to him, unless such fee is clearly reserved.” Id. In short, while this legal authority suggests the Joint Venture created the Reserve Strip with a purpose in mind, it does not clarify what that purpose was or whether the “1’ reserve strip identified on the Plat is encompassed within the “54’ private road” or, rather, its own separate and distinct tract of land.

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The first reason that the trial court denied the Ten Kleys’ request is it

concluded RCW 7.28.083(3) “does not apply in these circumstances (i.e., where

an easement holder defends against a claim for adverse possession.” The trial

court misinterpreted RCW 7.28.083(3), as the plain language of the statute does

not limit an award of attorney fees to a prevailing party based on the nature of that

party’s interest or lack thereof in the disputed real property. Under a plain reading

of RCW 7.28.083(3), the Ten Kleys could, in theory, recover attorney fees if they

are “[t]he prevailing party in an action asserting title to real property by adverse

possession.” Id. The trial court erred in interpreting the statute otherwise.

The two other reasons the trial court denied the Ten Kleys’ request for

attorney fees are because awarding attorney fees “would not be equitable and just

in light of the unique facts and circumstances of this case” and because the Ten

Kleys “did not properly segregate their attorney fees between the adverse

possession claim on which they prevailed and the other claims in the case.” These

issues should be addressed by the trial court on remand following resolution of the

remaining issues. The trial court may then consider whether an award of attorney

fees to the Ten Kleys would be “equitable and just” and whether the Ten Kleys

have properly segregated their attorney fees between the adverse possession

claim and the other claims.

Lastly, both parties request attorney fees on appeal. Because this case has

not yet concluded, these requests are premature. The trial court may consider this

issue on remand and award appellate attorney fees if and when it is appropriate to

do so.

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Affirm in part, reverse in part, remand for further proceedings.

WE CONCUR:

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