IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WILLIAM LENZ and NANCY LENZ, a married couple, No. 82787-1-I
Appellants, DIVISION ONE
v. UNPUBLISHED OPINION
DAVID P. MAROSI and CHERYL A. FORD, a married couple, and their marital community; and THE MAROSI LIVING TRUST,
Respondents.
PER CURIAM — William and Nancy Lenz appeal from a trial court order
following a bench trial. They argue that the trial court erred by not finding in their
favor on a quiet title claim, which was premised on a theory of mutual
acquiescence. But this theory was not pleaded in the Lenzes’ operative
complaint, and the Lenzes fail to establish that the trial court abused its discretion
in declining to deem their complaint amended to allege such a theory. Therefore,
we affirm.
I
The Lenzes own real property in Snohomish County. The Marosi Living
Trust (Trust) owns a property to the immediate west of the Lenzes’ property
(Trust property). David Marosi and his wife, Cheryl Ford (together, Marosi),
reside on the Trust property. No. 82787-1-I/2
In July 2019, the Lenzes initiated this lawsuit, naming the Trust and
Marosi as defendants. In their operative complaint, the Lenzes alleged that the
defendants had breached a road maintenance agreement, mowed a portion of
the Lenzes’ property without the Lenzes’ consent and otherwise trespassed onto
the Lenzes’ property, “removed and either converted, or disposed of [the
Lenze]s’ yard ornaments,” planted on the Trust property near its boundary with
the Lenzes’ property a hedge of cypress trees the roots of which would “destroy
[the Lenze]s’ fence within the next two years” and “compromise [the Lenze]s’
septic system and drain field within the next three to four years,” and engaged in
“ongoing . . . verbal harassment” of the Lenzes. In their requests for relief, the
Lenzes asked that “the Court quiet title to the area of [the Lenze]s’ property that
is not subject to the road easement and the road maintenance agreement.”
However, the Lenzes did not specify the theory on which their quiet title claim
was based or plead any facts related to their quiet title claim.
The Lenzes tried their claims to the bench over six days in May 2021. At
the outset of trial, the Lenzes’ counsel indicated that defense counsel “was
concerned about some of the averments [in the] complaint . . . in regard to what
arborists’ opinions might be” and that “[t]hose turned out to be not as accurate as
what I think the testimony is going to be.” The Lenzes’ counsel proposed that the
parties “just stipulate to amend the . . . complaint to conform to the evidence
that’s been admitted and that we have obtained in discovery” and posited that he
did not think defense counsel “would have a problem with that.” The trial court
2 No. 82787-1-I/3
invited the parties to discuss the matter overnight and advise the court if any
stipulations had been reached.
The next morning, the Lenzes’ counsel provided the following update:
I believe we have a stipulation that the evidence obtained in discovery and admitted at trial will be used to conform the pleadings to the evidence, specifically with regard to plaintiffs’ complaint. One of the issues that there was a – in his opening statement – in opening statement, the defendants made an issue about the distances of roots and the amount of time it would take to get those distances. Some of those statements in the pleading in terms of distances and time are inaccurate. But we have all seen the evidence and the declarations of the arborists and the deposition testimony of arborists, and we know what the accurate numbers are. So we have got a stipulation to just . . . conform the pleadings to the evidence under [CR] 15.
The trial court asked, “I gather you are saying that . . . it’s your understanding
that there’s a stipulation to conform the pleadings to the evidence under [CR] 15.
Is that correct?” The Lenzes’ counsel confirmed, “That’s what we are saying,
yes.” The court then asked defense counsel, “[I]s there indeed a stipulation as to
that?” Defense counsel responded, “Agreed.”
At no point during the foregoing colloquies did the Lenzes’ counsel
indicate that the Lenzes intended to assert a theory of mutual acquiescence in
support of their quiet title claim.
On May 17, 2021, the final day of trial, the Lenzes filed a “supplemental
trial brief” purporting to “present the following claims for the Court’s consideration
after trial as plead and per the Parties CR 15 stipulation that the pleadings will be
conformed to the evidence.” In a section of the brief under the heading “QUIET
3 No. 82787-1-I/4
TITLE,” the Lenzes listed “Mutual Acquiescence” and cited a single case without
any discussion.
The following morning, the trial court issued its oral decision. The court
observed, with regard to the Lenzes’ quiet title claim,
I . . . was wondering what the quiet title claim was talking about. And then yesterday the Court was informed that it involved assertions of . . . mutual acquiescence. Defense counsel understandably objected to its timeliness. And I confess, I am still rather unclear and somewhat perplexed about the assertions. But, in any event, . . . mutual acquiescence ha[s] particular legal components . . . that were not really developed at trial. And they concern potential issues about which the defense was not fairly put on notice.
The court incorporated its oral findings and conclusions by reference into a
written order, in which the only claims the trial court determined the Lenzes had
proved were their claims for breach of the road maintenance agreement and for a
declaration that Marosi and the Trust had “no right to do anything on the
[Lenze]s’ grass strip on the west side of the easement road crossing the Lenz
property absent permission by the Lenz[es].”
The Lenzes appeal.
II
The Lenzes contend that because their complaint “was amended by
stipulation under [CR] 15 to conform with the uncontroverted evidence admitted
at trial,”1 the trial court erred by refusing to address their mutual acquiescence
theory and, thus, their quiet title claim. We disagree.
1 Underlining omitted.
4 No. 82787-1-I/5
Under CR 15(b), “[w]hen issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings. Such amendment of the pleadings as
may be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any part at any time.” We review a trial
court’s denial of a motion to amend a pleading for abuse of discretion. Herron v.
Tribune Publ’g Co., 108 Wn.2d 162, 165, 736 P.2d 249 (1987). “ ‘A trial court
abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons.’ ” In re Marriage of Muhammad, 153
Wn.2d 795, 803, 108 P.3d 779 (2005) (quoting In re Marriage of Littlefield, 133 Wn.
39, 46-47, 940 P.2d 1362 (1997)).
For at least two reasons, the Lenzes fail to show that the trial court abused
its discretion in declining to deem the Lenzes’ complaint amended to allege
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WILLIAM LENZ and NANCY LENZ, a married couple, No. 82787-1-I
Appellants, DIVISION ONE
v. UNPUBLISHED OPINION
DAVID P. MAROSI and CHERYL A. FORD, a married couple, and their marital community; and THE MAROSI LIVING TRUST,
Respondents.
PER CURIAM — William and Nancy Lenz appeal from a trial court order
following a bench trial. They argue that the trial court erred by not finding in their
favor on a quiet title claim, which was premised on a theory of mutual
acquiescence. But this theory was not pleaded in the Lenzes’ operative
complaint, and the Lenzes fail to establish that the trial court abused its discretion
in declining to deem their complaint amended to allege such a theory. Therefore,
we affirm.
I
The Lenzes own real property in Snohomish County. The Marosi Living
Trust (Trust) owns a property to the immediate west of the Lenzes’ property
(Trust property). David Marosi and his wife, Cheryl Ford (together, Marosi),
reside on the Trust property. No. 82787-1-I/2
In July 2019, the Lenzes initiated this lawsuit, naming the Trust and
Marosi as defendants. In their operative complaint, the Lenzes alleged that the
defendants had breached a road maintenance agreement, mowed a portion of
the Lenzes’ property without the Lenzes’ consent and otherwise trespassed onto
the Lenzes’ property, “removed and either converted, or disposed of [the
Lenze]s’ yard ornaments,” planted on the Trust property near its boundary with
the Lenzes’ property a hedge of cypress trees the roots of which would “destroy
[the Lenze]s’ fence within the next two years” and “compromise [the Lenze]s’
septic system and drain field within the next three to four years,” and engaged in
“ongoing . . . verbal harassment” of the Lenzes. In their requests for relief, the
Lenzes asked that “the Court quiet title to the area of [the Lenze]s’ property that
is not subject to the road easement and the road maintenance agreement.”
However, the Lenzes did not specify the theory on which their quiet title claim
was based or plead any facts related to their quiet title claim.
The Lenzes tried their claims to the bench over six days in May 2021. At
the outset of trial, the Lenzes’ counsel indicated that defense counsel “was
concerned about some of the averments [in the] complaint . . . in regard to what
arborists’ opinions might be” and that “[t]hose turned out to be not as accurate as
what I think the testimony is going to be.” The Lenzes’ counsel proposed that the
parties “just stipulate to amend the . . . complaint to conform to the evidence
that’s been admitted and that we have obtained in discovery” and posited that he
did not think defense counsel “would have a problem with that.” The trial court
2 No. 82787-1-I/3
invited the parties to discuss the matter overnight and advise the court if any
stipulations had been reached.
The next morning, the Lenzes’ counsel provided the following update:
I believe we have a stipulation that the evidence obtained in discovery and admitted at trial will be used to conform the pleadings to the evidence, specifically with regard to plaintiffs’ complaint. One of the issues that there was a – in his opening statement – in opening statement, the defendants made an issue about the distances of roots and the amount of time it would take to get those distances. Some of those statements in the pleading in terms of distances and time are inaccurate. But we have all seen the evidence and the declarations of the arborists and the deposition testimony of arborists, and we know what the accurate numbers are. So we have got a stipulation to just . . . conform the pleadings to the evidence under [CR] 15.
The trial court asked, “I gather you are saying that . . . it’s your understanding
that there’s a stipulation to conform the pleadings to the evidence under [CR] 15.
Is that correct?” The Lenzes’ counsel confirmed, “That’s what we are saying,
yes.” The court then asked defense counsel, “[I]s there indeed a stipulation as to
that?” Defense counsel responded, “Agreed.”
At no point during the foregoing colloquies did the Lenzes’ counsel
indicate that the Lenzes intended to assert a theory of mutual acquiescence in
support of their quiet title claim.
On May 17, 2021, the final day of trial, the Lenzes filed a “supplemental
trial brief” purporting to “present the following claims for the Court’s consideration
after trial as plead and per the Parties CR 15 stipulation that the pleadings will be
conformed to the evidence.” In a section of the brief under the heading “QUIET
3 No. 82787-1-I/4
TITLE,” the Lenzes listed “Mutual Acquiescence” and cited a single case without
any discussion.
The following morning, the trial court issued its oral decision. The court
observed, with regard to the Lenzes’ quiet title claim,
I . . . was wondering what the quiet title claim was talking about. And then yesterday the Court was informed that it involved assertions of . . . mutual acquiescence. Defense counsel understandably objected to its timeliness. And I confess, I am still rather unclear and somewhat perplexed about the assertions. But, in any event, . . . mutual acquiescence ha[s] particular legal components . . . that were not really developed at trial. And they concern potential issues about which the defense was not fairly put on notice.
The court incorporated its oral findings and conclusions by reference into a
written order, in which the only claims the trial court determined the Lenzes had
proved were their claims for breach of the road maintenance agreement and for a
declaration that Marosi and the Trust had “no right to do anything on the
[Lenze]s’ grass strip on the west side of the easement road crossing the Lenz
property absent permission by the Lenz[es].”
The Lenzes appeal.
II
The Lenzes contend that because their complaint “was amended by
stipulation under [CR] 15 to conform with the uncontroverted evidence admitted
at trial,”1 the trial court erred by refusing to address their mutual acquiescence
theory and, thus, their quiet title claim. We disagree.
1 Underlining omitted.
4 No. 82787-1-I/5
Under CR 15(b), “[w]hen issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings. Such amendment of the pleadings as
may be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any part at any time.” We review a trial
court’s denial of a motion to amend a pleading for abuse of discretion. Herron v.
Tribune Publ’g Co., 108 Wn.2d 162, 165, 736 P.2d 249 (1987). “ ‘A trial court
abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons.’ ” In re Marriage of Muhammad, 153
Wn.2d 795, 803, 108 P.3d 779 (2005) (quoting In re Marriage of Littlefield, 133 Wn.
39, 46-47, 940 P.2d 1362 (1997)).
For at least two reasons, the Lenzes fail to show that the trial court abused
its discretion in declining to deem the Lenzes’ complaint amended to allege
mutual acquiescence.
First, the record does not support the Lenzes’ assertion that the parties
prospectively stipulated to amend the Lenzes’ complaint to include any
unpleaded theories on which the Lenzes would present evidence at trial. The
Lenzes rely on the colloquy that took place at the outset of trial to support their
assertion. But the only stipulation that clearly arose out of that colloquy had to do
with conforming the pleadings to an arborist’s testimony related to the growth
rate of certain roots. Indeed, even the trial court later indicated, in declining to
consider the mutual acquiescence theory, that it “was wondering” about the basis
for the quiet title claim until the final day of trial, when the Lenzes filed their
5 No. 82787-1-I/6
“supplemental brief,” which the trial court characterized as “add[ing] . . . more
general theories, perhaps hoping that something maybe would stick.” The
Lenzes do not persuade us that the trial court was manifestly unreasonable
inasmuch as it did not recognize an enforceable stipulation to amend the Lenzes’
complaint to allege mutual acquiescence. Cf. Morris v. Maks, 69 Wn. App. 865,
868, 850 P.2d 1357 (1993) (trial court’s decision whether to enforce a stipulation
is reviewed for abuse of discretion).
Second, “amendment under CR 15(b) cannot be allowed if actual notice of
the unpleaded issue is not given, if there is no adequate opportunity to cure
surprise that might result from the change in the pleadings, or if the issues have
not in fact been litigated with the consent of the parties.” Harding v. Will, 81
Wn.2d 132, 137, 500 P.2d 91 (1972). Here, the Lenzes do not point to anything
in the record to show that the Trust and Marosi were on actual notice that the
Lenzes intended to pursue a mutual acquiescence theory. And as discussed,
even the trial court indicated it was unclear as to the basis for the Lenzes’ quiet
title claim until the final day of a six-day trial. To this end, the trial court observed
that “[d]efense counsel understandably objected to its timeliness” and that “the
defense was not fairly put on notice.” The Lenzes do not acknowledge, much
less address, the trial court’s observations with regard to inadequate notice and
prejudice to the Trust and Marosi. Consequently, they fail to establish that the
trial court was manifestly unreasonable under the circumstances in declining to
6 No. 82787-1-I/7
deem the Lenzes’ complaint amended to allege a theory of mutual acquiescence
and refusing to consider that theory.2
FOR THE COURT:
2 In light of this determination, we need not reach the Lenzes’ argument that the trial court
erred inasmuch as it did not resolve the issue of mutual acquiescence in their favor. We observe, however, that the trial court’s statement that the elements of mutual acquiescence “were not really developed at trial” indicates that even if it had considered that theory, it would not have been persuaded that the Lenzes had satisfied their burden of proof thereon. To this end, we observe further that the elements of mutual acquiescence must be proven by clear, cogent, and convincing evidence, Merriman v. Cokeley, 168 Wn.2d 627, 630, 230 P.3d 162 (2010), and that appellate courts defer to the trier of fact on the overall weight and persuasiveness of the evidence, including any individual witness’s testimony. State v. Bass, 18 Wn. App. 2d 760, 782, 491 P.3d 988 (2021), review denied, 198 Wn.2d 1034, 501 P.3d 148 (2022); cf. Plancich v. Williamson, 57 Wn.2d 367, 370, 357 P.2d 693 (1960) (trier of fact is entitled to disbelieve a witness’s testimony even if not directly contradicted).