Opinion
No. 26177-8-III.
February 3, 2009.
Appeal from a judgment of the Superior Court for Grant County, No. 03-2-00895-4, John M. Antosz, J., entered April 5, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Brown, J.
This appeal involves a dispute about the boundary between two adjoining farms. Mr. William Maddox, proceeding pro se, challenges the bench verdict that he did not establish adverse possession of a disputed stretch of land on the boundary line. In its cross appeal, Bassani Farms LLC (Bassani) argues that it should have been entitled to additional damage awards, primarily consisting of attorney fees, by the trial court. We agree with one of the cross appeal claims and reverse in part, but affirm the trial court in all other respects.
Mr. Maddox was represented by counsel at trial, but briefed and prepared the appeal himself. Counsel did appear with Mr. Maddox at oral argument and gallantly stepped in to make an unprepared presentation to the court after a continuance request was denied.
FACTS
In 1987, Bassani Farms hired an engineering company to survey its property. Survey monuments were placed at the southwest and northwest corners of the property line where it adjoins the Maddox property. Approximately 20 steel posts were placed along the property line.
Between 2000 and 2001, Mr. Maddox expanded his irrigation pond to encroach on the Bassani Farms property. The pond contained an overflow drain pipe, which caused excess water to be discharged directly onto Bassani property. Mr. Maddox then cut poplar trees located on his property onto Bassani property. Mr. Maddox did not remove the poplar trees until the spring of 2003, despite requests by Bassani Farms to do so. He left debris from the poplar trees on Bassani property. The poplar trees prevented the planting of potatoes on the Bassani property during the 2002 and 2003 planting seasons.
In February 2003, Mr. Maddox constructed a gravel road along the southern portion of the property line between the two parcels. While constructing the road, Mr. Maddox placed a substantial amount of gravel on Bassani's property. The road overlapped the property line and encroached onto Bassani property by approximately 10 feet, covering about a 7,000 square foot parcel. Mr. Maddox then entered onto Bassani property with excavation equipment and scraped and leveled nearly the entire southwest corner of the property containing a thick stand of sagebrush and natural grasses.
In 2003, Bassani Farms had a second survey performed to re-identify the western boundary of its property. Because the steel fence posts on the property line were gone, wooden survey stakes and metal pins were placed along the surveyed line. Bassani Farms then constructed a fence along the surveyed property line.
In 2004, Mr. Maddox entered onto Bassani property and damaged the fence constructed between the two parcels. He cut the wire in several places and bent over several fence posts. Other fence posts were removed.
Bassani Farms filed suit against Mr. Maddox alleging trespass and seeking damages in an amount to be determined at trial. Mr. Maddox then raised a counterclaim alleging adverse possession and trespass.
Prior to trial, Bassani served Mr. Maddox with two notices under ER 904 identifying documents that it intended to offer into evidence during trial. The notice indicated that it intended to offer into evidence several aerial Farm Service Agency photographs of the parcels over several years. Mr. Maddox, however, objected to the authenticity of these photographs and Bassani Farms went through the process of authenticating the photographs and offered them into evidence at trial. Mr. Maddox did not object to their admissibility at trial.
At the conclusion of trial, the court dismissed Mr. Maddox's adverse possession counterclaim with prejudice, finding that he had failed to present sufficient evidence to prove that he had possessed or used Bassani property in an uninterrupted, exclusive or hostile manner for a period of 10 years or more. The trial court then found that all of Mr. Maddox's actions involving the poplar trees, gravel road, leveling of sagebrush and the fence constituted trespass under RCW 64.12.030 and awarded Bassani Farms treble damages in the following amounts: $5,145.00 for the poplar tree trespass claim, $21,000.00 for the gravel trespass claim, and $2,250.00 for the fence trespass claim.
The trial court found that Bassani was not entitled to damages for its leveling (sagebrush) trespass claim because no evidence had been presented at trial indicating that there had been any injury to the crops growing on the property or that there had been an increased cost to kill weeds in the farmed portion of its property. The trial court also found that no evidence had been presented at trial of a difference in the value of Bassani property prior to and after the trespass to support an award. The trial court found that no party would be awarded attorney fees finding that attorney fees were not authorized under RCW 64.12.030. Mr. Maddox then appealed to this court; Bassani cross-appealed.
ANALYSIS
Mr. Maddox's Appeal Adverse Possession. The issue presented by Mr. Maddox's appeal is a contention that the trial court erred in concluding that he had not established his adverse possession claim. Whether or not a claim of adverse possession has been established is a question of law which this court reviews de novo. Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 210, 936 P.2d 1163, review denied, 133 Wn.2d 1022 (1997). However, an appellate court is not a trial court and does not find facts anew. Instead, it must defer to the factual findings made by the trier of fact. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959).
Four elements must be proven to establish a claim of adverse possession. The claimant's possession of the land must be (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). Each of the elements must exist concurrently for at least 10 years. Id. The claimant bears the burden of proof on each element. Id.
The trial court concluded that the first, third, and fourth elements were not established. We agree. Mr. Maddox's basic argument is that the 1987 survey line showed the disputed land was on his side of the property, but the 2003 survey showed it was on the Bassani side. He therefore argues that he adversely possessed the land during the 16 years everyone thought the land was his property. However, mere possession of land is not the same as adversely possessing the land.
The record clearly establishes that Mr. Maddox did not begin using the disputed land until 2000 when he started expanding the irrigation pond, followed by the tree felling onto the disputed property. Until this point, there was nothing "hostile" about the use of the land. Similarly, the fact that the land was essentially left untouched and unused by the parties does not establish either exclusive use or actual use of the land. There must be use and maintenance of property in order to establish the "hostility" and "use" requirements of adverse possession. Chaplin v. Sanders, 100 Wn.2d 853, 862, 676 P.2d 431 (1984). Merely leaving the land in an unused state and respecting the apparent boundary does not establish adverse possession. The trial court correctly found that the elements of adverse possession had not been established.
Mutual Recognition. Mr. Maddox also appears to argue that he established his right to the property by the doctrine of mutual recognition or acquiescence. Lamm v. McTighe, 72 Wn.2d 587, 434 P.2d 565 (1967). However, his answer only raised mutual recognition as a defense to the trespass allegations; he did not seek to quiet title on that basis. Rather, he did seek to quiet title under a theory of adverse possession. Clerk's Papers (CP) at 20-25. He cannot present a new theory for quieting title for the first time in an appeal. RAP 2.5(a).
Since the issue was not raised as a counterclaim, there also are no findings of fact from the trial court to support the argument.
For both reasons, we conclude that Mr. Maddox's appeal is without merit and affirm the decision of the trial court with respect to his claims at trial.
Bassani Cross Appeal Attorney Fees. Bassani argues that the trial court erred in applying RCW 64.12.030, which permits treble damages but no attorney fees, to the facts of this case, instead of RCW 4.24.630, which does permit attorney fees and investigative costs in addition to treble damages. The trial court correctly concluded that the older statute was applicable to the leveling (sagebrush) claim, but erred in finding it applied to the other trespasses. We therefore affirm in part and reverse in part on this issue.
RCW 4.24.630 provides for damages for wrongful waste or injury to land. It provides:
(1) Every person who goes onto the land of another and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury. For purposes of this section, a person acts "wrongfully" if the person intentionally and unreasonably commits the act or acts while knowing, or having reason to know, that he or she lacks authorization to so act. Damages recoverable under this section include, but are not limited to, damages for the market value of the property removed or injured, and for injury to the land, including the costs of restoration. In addition, the person is liable for reimbursing the injured party for the party's reasonable costs, including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs.
(2) This section does not apply in any case where liability for damages is provided under RCW 64.12.030, 79.01.756, 79.01.760, 79.40.070, or where there is immunity from liability under RCW 64.12.035.
RCW 64.12.030, however, applies where a tree or shrub is cut without lawful authority.
The statute provides:
Whenever any person shall cut down, girdle or otherwise injure, or carry off any tree, timber or shrub on the land of another person, or on the street or highway in front of any person's house, village, town or city lot, or cultivated grounds, or on the commons or public grounds of any village, town or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town or city against the person committing such trespasses or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be.
Bassani pled both of these statutes with respect to the sagebrush area claim in its amended complaint, but only pleaded RCW 4.24.630 with respect to the other trespass claims. CP at 200. Thus, an award of any damages under RCW 64.12.030 on the other trespass claims would be questionable at best. However, we conclude that RCW 4.24.630 did apply to all claims but the sagebrush claim.
RCW 4.24.630(2) expressly states that it does not apply to trespasses that are the subject of other statutes, including RCW 64.12.030. That latter statute, in turn, applies whenever "any person shall cut down . . . or otherwise injure . . . any tree, timber, or shrub on the land of another person." Bassani agreed at argument that its own expert had identified sagebrush as a "shrub" during trial testimony. Accordingly, the plain language of RCW 64.12.030 includes the sagebrush trespass within its reach.
To avoid this result, Bassani argues that trespasses under RCW 4.24.630(2) must be intentional rather than negligent or casual, and that the heightened mental state of that statute makes it applicable to this case. There are two problems with that argument. First, RCW 64.12.030 has no mental state and applies equally to intentional or negligent takings of timber and shrubs. If the Legislature had meant one statute to apply to intentional actions and one to nonintentional acts, it needed to amend RCW 64.12.030 to limit its reach to nonintentional takings. It has not done so. Second, reading subsection 630(1) as Bassani does renders the exemption of subsection 630(2) meaningless. There was no need to exempt application of RCW 64.12.030 if it already was not applicable to cases of intentional taking. Courts will not interpret statutes in a manner that renders portions of them meaningless. Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).
Accordingly, we conclude, as did the trial court, that RCW 64.12.030 was applicable to the intentional trespass against the Bassani sagebrush. The court correctly determined that attorney fees were not recoverable for that trespass.
Bassani also complains that the trial court erred in not granting it damages covering the restoration of the sagebrush, arguing that it is entitled to those damages under RCW 64.12.030. Assuming that costs of restoration are recoverable under that statute, the problem is that the trial court did not award any. It appears to have considered the possibility in its oral ruling, Report of Proceedings (RP) at 1293, but primarily analyzed why there were no damages from the loss of the sagebrush. RP at 1293-1294. Since the court does not appear to have rejected the possibility of restoration out of hand, we will presume from the absence of findings that the plaintiff failed to prove its case for restorative damages. Seattle Flight Serv., Inc. v. City of Auburn, 24 Wn. App. 749, 751-752, 604 P.2d 975 (1979). Most certainly no effort was made to clarify the court's ruling, and the written findings do not reference the issue.
However, RCW 4.24.630 was applicable to the other trespass claims. None of those involved the taking or injury of "tree, timber or shrub." Thus, RCW 64.12.030 did not apply to the intentional injuries inflicted in the gravel, fence, and poplar felling trespasses. In addition, RCW 4.24.630 was the only statutory recovery theory that Bassani pleaded reference those particular trespasses. The trial court found that Mr. Maddox intentionally committed each of those three acts. Accordingly, RCW 4.24.630 was the applicable theory. Bassani was entitled to its investigation costs and attorney fees related to those trespasses. The trial court erred in concluding otherwise.
Bassani also argues that the various trespasses were so "intertwined" that it should get its entire attorney fees rather than just those related to the three noted trespasses. The rule in this state is that a party is entitled to attorney fees only on those claims for which attorney fees are authorized and the court must segregate the claims unless it is impractical to do so. Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 501-502, 859 P.2d 26, 865 P.2d 507 (1993). Here, Bassani raised several claims that it did not prevail on and was also successful on one claim (sagebrush trespass) for which attorney fees are not applicable. We believe that the trial court has the ability to fairly segregate the work done on the various theories and award appropriate attorney fees on the three causes for which recovery of attorney fees is permitted. On remand, the trial court will apportion fees as its discretion indicates.
ER 904. Bassani also argues that the trial court erred in failing to award its costs for the necessity of authenticating numerous photographs at trial. There is an insufficient record to show that the trial court abused its discretion in this area.
ER 904(b) requires a party to give notice before trial of documents it will offer at trial. The evidence will be admissible without additional identification unless the other party objects within 14 days. ER 904(c). If the trial court determines that the objection "was made without reasonable basis," the court may award "expenses and reasonable attorney fees incurred as a result of the required proof of authentication." ER 904(c)(1). It appears that a trial court's decision in this area is reviewed for abuse of discretion. Miller v. Arctic Alaska Fisheries Corp., 133 Wn.2d 250, 260, 944 P.2d 1005 (1997) (discussing admissibility of evidence under ER 904). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Bassani sent the required notice to Mr. Maddox (he was representing himself prior to trial), who timely filed his objection. At trial, however, defense counsel did not object to the admission of the photographs. Bassani now contends that it is entitled to its attorney fees and costs for the expense of establishing authentication at trial. The problem, however, is that Bassani does not appear to have asked the trial court for any such relief. Bassani does not point to any place in the record where it requested costs based on ER 904, nor has it shown us how the trial court ruled on the request. It is very hard, if not impossible, for a trial judge to abuse discretion he or she was not asked to exercise.
It appears that this issue is being argued for the first time in this appeal. It is not one of the limited types of issues that this court can hear without first having been presented to the trial court. RAP 2.5(a). On the face of this record, we conclude that Bassani has not shown any basis for relief, let alone that this court can consider the claim.
Fees on Appeal
Finally, Bassani asks for fees and costs on appeal. This court may award costs and statutory attorney fees to a substantially prevailing party. RAP 14.2. There is no substantially prevailing party here. While Bassani has won some relief, it has failed on the majority of the issues it raised. Generally, there is no prevailing party when each party prevails on some issues. E.g., Ennis v. Ring, 56 Wn.2d 465, 473, 341 P.2d 885, 353 P.2d 950 (1959).
To the extent that Bassani is claiming reasonable attorney fees under the trespass statute, we decline to expand the reach of that statute to include fees on appeal. The brief mention of fees in the briefing also is not sufficient to present the issue here. RAP 18.1(b).
CONCLUSION
We affirm the trial court's decisions on the adverse possession, leveling (sagebrush) trespass, and ER 904 claim (if any). We reverse and remand to the trial court for award of costs and attorney fees under RCW 4.24.630 on the other three trespass claims.
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.
SCHULTHEIS, C.J. and BROWN, J., concur.