Opinion
No. 64504-8-I.
November 15, 2010.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-03928-5, Eric Z. Lucas, J., entered November 16, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Grosse, J., concurred in by Becker and Schindler, JJ.
A property owner does not lose standing to assert title to a piece of property under the theories of adverse possession, the common grantor doctrine, or mutual recognition and acquiescence, nor do such claims become moot, where the owner conveys to a third party property contiguous to the disputed property, but does not include the disputed property in the conveyance. Accordingly, we reverse the order granting Judith (Judy) Anderson's motion for summary judgment dismissing Richard Anderson's counterclaims for lack of standing and mootness, and remand.
FACTS
This is a boundary dispute case involving property located in Snohomish County. In April 2007, when this litigation began, Richard Anderson owned Tract 2, and Judy Anderson owned Tract 4, which is directly south of Tract 2. Tracts 2 and 4 share a common boundary. The property has been surveyed at least twice. Of relevance to this litigation are the Cascade Surveying Engineering, Inc. (Cascade) survey and the older Voorheis-Trindle-Nelson, Inc. (Voorheis) survey. The Voorheis survey locates the boundary between Tracts 2 and 4 farther south than the Cascade survey, thus making Richard's Tract 2 on the Voorheis survey larger than as shown on the Cascade survey.
Although the parties have the same last name, they are not related. For clarity, the parties will be referred to as Richard and Judy.
A dispute arose between Judy and Richard regarding the boundary between her Tract 4 and his Tract 2. In April 2007, Judy filed a complaint against Richard for trespass, in ejectment, and to quiet title. Judy's complaint relied on the Cascade survey as establishing the boundary. Richard filed an answer to Judy's complaint, alleging that the boundary should be determined by using the Voorheis survey or by applying the common grantor doctrine. Richard did not file a counterclaim at that time.
In August 2008, Richard sold Tract 2 to Darren and Barbara Massey. The conveyance used the southern boundary line of Tract 2 as shown on the Cascade survey. Richard claims he retained the disputed property, which is that part of the land the Voorheis survey reflects is included in Tract 2, but the Cascade survey shows as lying within Tract 4. In essence, Richard claims a portion of Tract 4 by adverse possession.
Judy and the Masseys reached an agreement with regard to the boundary between Tracts 2 and 4. The boundary as agreed was almost, but not exactly, the same as the boundary reflected in the Cascade survey.
In October 2008, after Richard's sale of Tract 2 to the Masseys, Judy's counsel sent Richard's counsel a proposed stipulation and order to dismiss all claims between Judy and Richard. Richard did not agree to the stipulation and, instead, noted the case for trial. In May 2009, after the conveyance to the Masseys, Richard filed an amended answer and, for the first time, a counterclaim. In the counterclaim, he claimed title to the disputed property under three theories: the common grantor doctrine, adverse possession, and mutual recognition and acquiescence.
Richard then filed a motion for summary judgment; Judy followed with her own motion, entitled "Plaintiff's Motion for Summary Judgment of Defendants' Counterclaim and Dismissal of Plaintiff's Claims as Moot." Richard's motion was based "primarily" on the common grantor doctrine. Judy's motion was based on mootness and lack of standing. Although Richard filed his motion before Judy filed hers, Judy's motion was set for hearing before Richard's.
Although Judy did not move to dismiss her claims under CR 41, her motion, with respect to her claims against Richard is, in substance, a motion for voluntary dismissal.
The trial court granted Judy's motion. In the order, the court granted Judy leave to withdraw her claims in trespass and to quiet title as moot and dismissed Richard's counterclaims, finding that Richard had no standing to raise them because they were moot as between the parties. The trial court denied Richard's motion for reconsideration.
ANALYSIS
Standard of Review and Record on Appeal
We review the denial of a motion for summary judgment de novo. We examine the evidence — and only that evidence — that was in the record before the trial court on the summary judgment motion. According to the trial court's order on Judy's motion for summary judgment, the evidence that was in the record before the trial court consisted of (1) Judy's motion and exhibits, (2) Richard's response and exhibits, (3) Judy's reply to Richard's response, and (4) "[a]ll records and pleadings filed herein." Because Richard's motion for summary judgment was filed before Judy's, the documents relating to Richard's motion were among the "records and pleadings filed herein" at the time the trial court ruled on Judy's motion for summary judgment and are therefore part of the record before us on appeal.
Atlantic Cas. Ins. Co. v. Oregon Mut. Ins. Co., 137 Wn. App. 296, 302, 153 P.3d 211 (2007).
Boguch v. Landover Corp., 153 Wn. App. 595, 608, 224 P.3d 795 (2009).
To the extent that any documents referenced during oral argument on appeal were not before the trial court on Judy's motion for summary judgment or were not properly authenticated, the trial court may properly disregard such documents on remand. Further, we deny Richard's request for permission pursuant to RAP 10.3(a)(8) to include the material in Appendices B, C, and D of his brief. The issues on appeal can be resolved without regard to these documents.
We review a trial court's ruling on a CR 41(a) motion for voluntary dismissal for abuse of discretion.
Although Judy's motion for dismissal of her claims does not explicitly state that it is a motion for voluntary dismissal under CR 41(a), we find that it is, in substance, such a motion.
Farmers Ins. Exch. v. Dietz, 121 Wn. App. 97, 100, 87 P.3d 769 (2004).
Substantive Issues
The proper parties to a boundary dispute are those persons having interests in the real property subject to the dispute. In Smith v. Anderson, the court concluded that in a boundary dispute action, only the parties "immediately affected," i.e., only the owners of the property separated by the boundary are necessary or proper parties to the action. In Cady v. Kerr, also a boundary dispute case, the court held that the trial court correctly dismissed with prejudice the plaintiff's claims against a defendant who had sold his interest in the disputed property prior to the commencement of the boundary dispute action because the defendant was not a necessary party. Also, RCW 7.28.010, governing actions in ejectment and to quiet title, specifically confers the right of action on persons having a valid subsisting interest and a right to possession.
117 Wash. 307, 310, 201 P.1 (1921).
11 Wn.2d 1, 118 P.2d 182 (1941).
Here, at the time Judy filed her boundary dispute action, the proper parties to the action were Judy and Richard, the owners of the property involved in the dispute. At the time he sold Tract 2 to the Masseys, Richard had not filed his counterclaim in which he alleged, inter alia, adverse possession of the disputed strip.
Judy argues that her claims and Richard's counterclaims were properly dismissed because Richard conveyed his entire interest in Tract 2 to the Masseys and therefore lacks standing to claim title to the disputed piece of property. She claims that Richard lacks standing because, with regard to the southern boundary of Tract 2, the legal description of Tract 2 when Richard purchased it was identical to the legal description when he conveyed it to the Masseys. Accordingly, she argues, Richard conveyed all of his interest in Tract 2 and therefore has no standing to claim title to the disputed portion and that the issues are moot. Richard does not dispute that he conveyed the property identified as Tract 2 on the Cascade survey. He argues that because he did not convey the disputed portion of the property (a portion of Tract 4), the issues are not moot and he retains standing to litigate his claim of title to that property.
To have standing to bring an action, a person must have a personal stake in the outcome of the action. Sabey v. Howard Johnson Co., 101 Wn. App. 575, 584, 5 P.3d 730 (2000).
A case is moot if there is no longer a controversy between the parties, if the question presented is merely academic, or if a substantial question no longer exists. Morrison v. Basin Asphalt Co., 131 Wn. App. 158, 162-63, 127 P.3d 1 (2005).
Because Richard conveyed only Tract 2 as shown on the Cascade survey, and, as he asserts in his counterclaim, title to the disputed property is properly in him based on the theories of the common grantor doctrine, adverse possession, or mutual recognition and acquiescence, he has alleged personal stake in the outcome and therefore has standing to assert the counterclaim. In theory, by his conveyance to the Masseys, Richard did not relinquish his claim of ownership of the disputed property between the Cascade survey's boundary and the Voorheis survey's boundary. No matter how tenuous we may believe his claims to be, they are sufficiently supported by the record to survive a motion for dismissal on summary judgment, at least at this juncture. The controversy between him and Judy with regard to the disputed property did not go away with Richard's conveyance to the Masseys.
Accordingly, we conclude that the trial court erred by granting Judy's motion for summary judgment dismissal of Richard's counterclaim on the grounds of mootness and lack of standing. We affirm the dismissal of Judy's claims against Richard, reverse the order granting Judy's motion for summary judgment and dismissing Richard's counterclaim, and remand.
A number of the arguments the parties raise are not relevant to the issues presented and are therefore not addressed. These include arguments about an agreement between Judy and the Masseys as to the boundary between Tracts 2 and 4, Darren Massey's deposition testimony about his understanding of the boundary, and alleged misrepresentations by Richard. Further, we do not address Richard's argument VI because it is an improper attempt to make an argument on appeal by incorporating arguments from trial court briefs. See Kwiatkowski v. Drews, 142 Wn. App. 463, 499-500, 176 P.3d 510 (2008) (holding that such arguments are waived on appeal).
We decline Richard's request that we consider the merits of his motion for summary judgment.
WE CONCUR: