Lillian Lam And Kevin Tible, Apps. v. Sergio A. Bravo, Xuan Zhang, Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LILLIAN LAM and KEVIN TIBLE, )
) No. 79018-8-I
Appellants, )
) DIVISION ONE
v.
)
SERGIO BRAVO and XUAN ZHANG, )
Respondents, )
and

ERIKA CHIHUAHUA, ) UNPUBLISHED OPINION

Defendant. ) FILED: January 13, 2020

SMITH, J. —This appeal involves a dispute regarding a landlocked property and

its easement. Appellants, Lillian Lam and Kevin Tible (collectively the Lams), co-own

their home, which they can access only by ingress and egress over Sergio Bravo and

Xuan Zhang’s (collectively the Bravos) property (Bravo Property). The Lams brought

suit against the Bravos and their tenant, Erika Chihuahua, for, among other things,

obstruction of easement, nuisance, and preliminary and permanent injunction. The

Lams alleged that the prior owner of the Bravo Property granted an easement to the

exclusion of use for the benefit of the Bravo Property. The Lams additionally claimed

adverse possession rights to parts of the Bravos Property. The Bravos filed a motion

for partial summary judgment asserting that the easement was not exclusive and the

Lams had not satisfied the elements of adverse possession. The King County Superior

Court granted the motion. The court also granted the Bravos’ motion for attorney fees
No. 79018-8-1/2

and sanctions.

The Lams appeal. They argue, among other things, that because they did not

allege an adverse possession claim in their complaint, the trial court erred by granting

summary judgment as to such a claim. But because the Lams asserted adverse

possession as an affirmative defense to the Bravos’ counterclaims and in a motion for a

temporary restraining order (TRO), the trial court did not err by entering summary

judgment regarding that claim. Additionally, because the easement is ambiguous and

the grantor’s conduct and the circumstances at the time of conveyance support a

conclusion that the easement was not meant to exclude the Bravo Property’s use, the

Lams also failed to establish a genuine issue of material fact as to whether the

easement excludes use by the Bravo Property. Finally, the trial court did not err by

awarding fees and sanctions because the Lams brought claims that were not grounded

in fact or supported by law. Therefore, we affirm.

FACTS

In 2016, the Lams purchased their home at 5144 South Augusta Street in Seattle

(Lam Property). Earlier that year, the Bravos had purchased the Bravo Property, a

duplex at 5146 South Augusta Street. Prior to the Bravos, Viengkham Phonbandit

owned the Bravo Property, and his brother and his sister-in-law, Nate and Na

Phonbandit, lived in the lower unit of the duplex until 2014. Robert Arnaud and Lan

Tran bought the Lam Property in 2006, which was and remained undeveloped until the

Lams purchased it in 2016.

In 2007, Viengkham granted a written easement for ingress, egress, and utilities,

which was subsequently recorded in King County. The 2007 easement declares:

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No. 79018-8-1/3

FOR A VALUABLE CONSIDERATION, . the Grantor(s)...
. .

hereby grant and convey a(an) [exclusive/non-exclusive] easement
• (attached and incorporated as Exhibit “A”) to Grantee(s), its successors in
interest and assigns, for the purpose of conveying an INGRESS /
EGRESS & UTILITIES Easement.

(Emphasis added.) (First and second alterations in original.) In other words, although

the 2007 easement was printed on a form permitting the parties to select whether the

easement was exclusive or nonexclusive, neither option was selected. Under the

easement, the Lam Property is the dominant estate, and the Bravo Property is the

servient estate. The easement cites to exhibit B as the “legal description,” but exhibit B

does not indicate whether the easement is exclusive or nonexclusive. However,

attached to the 2007 easement but not cited in the easement itself, is an attachment

designated as exhibit C, which states that the easement is ‘an exclusive easement for

ingress, egress, and utilities over, under, and across the west 10.00 feet of the.

land.” (Emphasis added.)

In a later declaration, the drafter of the 2007 easement, Tracy Timm, explained

that he “drafted the exclusive easement for ingress, egress, and utilities,” which “was

intended to be exclusive.” But Timm explained, “[M]y understanding [is] that the owner

is not denied the use of his land just because it is encumbered by an easement.”

Additionally, when deposed, Nate and Na testified that during their 12-year residence at

the Bravo Property, Viengkham consistently traversed the easement with his vehicle,

parking on the west side of the property, near the easement. Nate further declared that

no one used the easement to access the Lam Property between 2006 and 2014.

In October 2017, Lillian Lam—representing herself and Tible—filed suit against

the Bravos and their tenant, Chihuahua, in King County Superior Court, alleging

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No. 79018-8-1/4

(1) obstruction of easement, (2) nuisance, (3) disgorgement of profit, (4) damages, and

(5) preliminary and permanent injunction. The Lams claimed that the Bravos violated

the exclusive easement by renting the Bravo Property and allowing the property’s

tenants to block and use the Lams’ easement. The Lams further contended that the

easement excluded the Bravos and their tenants from its use. The Lams asserted that

the Bravos’ violations came at the expense of their quiet enjoyment and that they were

entitled to receive a part of the Bravos’ rental income. The Bravos counterclaimed that

the Lams have continuously trespassed onto portions of their property, “using at least

seven extra feet of [the Bravo Property] by driving their cars daily across the northern

portion.”

At the time the suit commenced, Chihuahua rented the upper apartment of the

Bravo Property. Citing problems with the Lams, Chihuahua declined to renew her

lease. Thereafter, Genaro Gonzalez and Gerardo Pena moved into the vacated

apartment. Following an incident where Tible allegedly harassed Gonzalez, the Bravos

informed the Lams, through counsel, that they would be installing a fence along the

common property line. The Bravos sought and received a permit to build the fence.

The Lams sought a TRO under RCW 7.40.050 to stop the construction of the

fence. The Lams requested, among other things, that the court require that the Bravos

remove all fences and parked vehicles from the easement and enjoin the Bravos from

“being within 100 feet [of] the [easement] unless they are removing obstructions from

the express easement, prescriptive easement/easement by necessity, or Defendants’

property that is being adversely possessed.” The Lams claimed that they have “clear

legal right to access their property,” including “adverse possession rights to the full width

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No. 79018-8-1/5

of the [easement], as used for decades.” (Capitalization omitted.) The Lams contended

that they provided the Bravos with notice of the hearing on the TRO. However, the trial

court disagreed and denied the TRO motion for lack of notice under CR 65(b).1 In

March 2018, the Bravos constructed the fence.

On April 30, 2018, the Bravos moved for partial summary judgment.2 In support

of their opposition to the motion, the Lams submitted the declarations of Nate,

Viengkham, and Na Phonbandit (collectively the Phon band its). The Lams prepared the

declarations, which Nate and Na later testified to signing without reading. The Bravos

believed the declarations were conclusory and contrary to established facts and

subpoenaed the Phonbandits for deposition testimony. The Lams and the Phonbandits

did not appear for the depositions. The Lams allegedly instructed the Phonbandits to

ignore Bravos’ counsel’s request for depositions. As a result, the Bravos filed a motion

for contempt and only then did Nate and Na appear.

Nate’s deposition testimony contracted all three declarations by the Phonbandits.

Specifically, Nate’s declaration stated that neither his brother nor other residents of the

Bravo Property ever used the easement and that Tran and Arnaud, the previous owners

of the Lam Property, consistently drove over a 13-foot-wide area. But at his deposition,

Nate testified that his brother constantly used the easement and parked on the west

side of the Bravo Property; he further testified that no one accessed the Lam Property

from 2006 to 2014. Additionally, although Na’s declaration was in English, the record

contains evidence that she reads minimal English. Following the depositions, the Lams

The court’s order does not provide its reasons for finding that the Lams failed to
provide notice.
2 At this time, Daniel Frohlich filed a notice of appearance for the Lams.

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No. 79018-8-1/6

withdrew the declarations.

After obtaining the Phonbandits’ depositions, the Bravos renewed their motion for

partial summary judgment. The Lams did not submit an opposition. At the beginning of

the hearing on the motion, the Lams moved “to voluntarily dismiss the adverse

possession claim.” The Lams requested dismissal without prejudice, and the Bravos

refused to stipulate unless dismissal was with prejudice. The Lams refused to agree to

dismissal with prejudice, so the court proceeded with arguments on the merits. The

Lams later reasserted that they were moving for voluntary nonsuit under CR 41. The

court responded, “Right. But that’s only on condition that it is without prejudice.” The

court moved on, and in its order for summary judgment, it concluded that the Lams’

motion “wasn’t presented in proper format with adequate notice to the opposing party.”

During the hearing on the motion for summary judgment, the Bravos objected to

the declaration of Timm, contending that the declaration was hearsay. The Bravos

asked the court to strike the declaration and pointed the court to a footnote in their

motion which contained their request. The court concluded that it would not strike the

declaration because the Bravos did not complete the hearsay analysis outside of the

footnote, but it would give it “the appropriate amount of weight.”

Following the hearing, the trial court granted the Bravos’ motion for summary

judgment. The trial court dismissed the Lams’ adverse possession and prescriptive

easement claims with prejudice, quieted title in favor of the Bravos, and concluded that

the 2007 easement was nonexclusive.

Subsequently, on the Bravos’ motion, which was accompanied by Brian

Muchinsky’s declaration, the trial court awarded attorney fees and costs in the amount

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No. 79018-8-1/7

of $46,507.53. The court further granted the Bravos’ motions for sanctions under CR

11. The trial court found that the Lams acted in bad faith by (1) “[djraft[ing] and fil[ing]

false declarations for third parties,” (2) “[ojbstruct[ing] the Bravos’ ability to obtain

discovery by directing witnesses to ignore any attempts by Bravos’ counsel to obtain

information,” (3) making “false statements in their own declarations,” (4) “[a]ssert[ing]

claims that had no basis in fact or law, and (5) attempting “to intimidate the Bravos’

tenants.” The court sanctioned the Lams “in the amount of $5,000 . . . to deter and

punish the Plaintiffs, Lam and Tible, from engaging in vexatious and frivolous legal

practice in the future.” The Lams appeal.

ANALYSIS

The Lams contend that the trial court erred in granting the Bravos’ partial motion

for summary judgment with regard to the claims of adverse possession and the

easement’s exclusivity. We disagree.

We review summary judgment orders de novo, viewing all evidence and

reasonable inferences in the light most favorable to the nonmoving party. Keck v.

Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Under CR 56(c), “summary

judgment is appropriate where there is ‘no genuine issue as to any material fact and .

the moving party is entitled to a judgment as a matter of law.” Elcon Constr., Inc. v. E.

Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012) (alteration in original).

“Summary judgment is proper on a factual issue only if reasonable minds could reach

but one conclusion on it.” Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71(1992).

Once the moving party shows there are no genuine issues of material fact,

[tjhe nonmoving party may not rely on speculation, argumentative
assertions, “or in having its affidavits considered at face value; for after the

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No. 79018-8-118

moving party submits adequate affidavits, the nonmoving party must set
forth specific facts that sufficiently rebut the moving party’s contentions
and disclose that a genuine issue as to a material fact exists.”

Beckerv. Wash. State Univ., 165Wn. App. 235, 245-46, 266 P.3d 893 (2011)

(emphasis added) (quoting Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1,

13, 721 P.2d 1(1986)).

Adverse Possession Claim

The Lams make two contentions with regard to the adverse possession claim: (1)

that they never asserted an adverse possession claim and (2) that the trial court erred in

refusing to grant their oral motion for voluntary nonsuit as to that claim. We disagree

with both contentions.

As to the first contention, the Lams assert that because CR 56(b) allows a party

to seek summary judgment when “a claim, counterclaim, or cross claim is asserted” and

because they did not bring an adverse possession claim within their complaint, the

Bravos could not seek summary judgment on the issue. While the Lams did not bring

an adverse possession claim within their complaint and it is unclear from the record

what exactly they claimed adverse possession rights to, their motion for a TRO claims

that the Bravos’ construction of a fence would enclose “property that is being adversely

possessed, as described in the Complaint.” (Emphasis added.) The TRO motion also

claimed that the Lams have “adverse possession rights to the full width of the driveway,

as used for decades.” And Lillian Lam’s declaration in support of the TRO motion stated

that the prior owners of the Lam Property “continuously used an additional 10 feet of

land on Bravo and Zhang’s property for ingress and egress.” The Lams also stated, as

an “affirmative defense[ ],“ that adverse possession barred the Bravos’ counterclaims.

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No. 79018-8-119

Finally, in their opposition to the Bravos’ motion for summary judgment, the Lams

asserted and presented extensive argument that “the facts establish adverse

possession.” (Capitalization omitted.) Specifically, the Lams claimed that the prior

owners of the Lam Property “continuously and uninterruptedly drove over a 13-foot wide

area on the western side of the Bravo Property.” Indeed, within the opposition and the

TRO motion, the Lams argued that they satisfied all elements of adverse possession.

Furthermore, it would be inequitable to allow the Lams to actively litigate a claim,

provide false declarations in support of a claim, and then—when they realize the claim

is meritless and they must pay attorney fees—allow them to contend that they never

brought the claim. For these reasons, we conclude that although the Lams did not

expressly state an adverse possession claim in their complaint, they nonetheless

“asserted” such a claim for purposes of CR 56(6).

As to the second contention, the Lams argue that CR 41 required the trial court

to grant their motion for a voluntary nonsuit. Under CR 41, the court “shall” dismiss any

action “[u]pon motion of the plaintiff at any time before plaintiff rests at the conclusion of

plaintiff’s opening case.” CR 41(a). “A plaintiff’s right to a voluntary nonsuit must be

measured by the posture of the case at the precise time the motion is made because

the right to dismissal, if any, becomes fixed at that point.” Calvert v. Berg, 177 Wn. App.

466, 472, 312 P.3d 683 (2013). When the plaintiff’s motion is made in response to a

summary judgment motion, “[the] plaintiff retains the right to a voluntary nonsuit until the

motion for summary judgment has been ‘submitted to the court for decision.” Gutierrez

v. Icicle Seafoods, Inc., 198 Wn. App. 549, 553, 394 P.3d 413 (2017) (quoting Paulson

v. Wahi, lOWn. App. 53, 57, 516 P.2d 514 (1973)). A trial court has discretion to grant

9
No. 79018-8-1110

the plaintiff’s motion for voluntary nonsuit with prejudice. Escude v. King County Pub.

Hosp. Dist. No. 2, 117 Wn. App. 183, 187, 69 P.3d 895 (2003). Dismissal with prejudice

under CR 41 (a)(4) should be limited to the “circumstances where dismissal without

prejudice would be pointless.” Escude, 117 Wn. App. at 187. We review a trial court’s

decision to deny a motion to dismiss under CR 41 for abuse of discretion. Escude, 117

Wn. App. at 190.

Escude is instructive. There, we consolidated three cases to review whether the

trial court properly exercised its discretion when it dismissed certain claims with

prejudice. Escude, 117 Wn. App. at 187. In the first consolidated case, the plaintiffs

conceded that the dismissed claims lacked merit. Escude, 117 Wn. App. at 187. In the

other two cases, the plaintiffs sought dismissal without prejudice under CR 41(a)(1)(B),

but the defendants opposed dismissal without prejudice because the applicable statutes

of limitation had run. Escude, 117 Wn. App. at 189. The trial courts granted dismissal

with prejudice in each case. Escude, 117 Wn. App. at 189. We concluded that under

CR 41(a)(4), a trial court has discretion to dismiss with prejudice those claims that an

opposing party concedes lack merit or those claims that are outside of the applicable

statutes of limitation. Escude, 117 Wn. App. at 192. We therefore affirmed the trial

courts’ orders of dismissal with prejudice. Escude, 117 Wn. App. at 192.

Here, similar to the plaintiffs in Escude, the Lams concede that they cannot

satisfy the statutory requirements for an adverse possession claim. Escude, 117 Wn.

App. at 192. Thus, dismissal without prejudice would be futile. This is particularly true

considering that a fence now blocks the Lams’ ability to access any part of the Bravos’

property beyond the 10-foot easement. Therefore, we conclude that under CR 41(a)(4),

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No. 79018-8-I/Il

the trial court had authority to dismiss the adverse possession claim with prejudice.

On the basis of its authority to dismiss with prejudice, the trial court properly

presented the Lams with an option: consent to dismissal with prejudice or proceed with

the summary judgment hearing. The Lams chose to proceed. In short, the trial court

properly conditioned consideration of the Lams’ motion on its being a motion with

prejudice. We conclude that when the Lams did not agree to that condition, they

effectively withdrew their motion.3 Accordingly, we next address whether the court

properly granted summary judgment on the merits of the adverse possession claim.

For a court to award a party adverse possession rights to a property, the party’s

use must have been open and notorious, adverse, made under a claim of right in good

faith, and for the statutory time frame. Kunkel v. Fisher, 106 Wn. App. 599, 602, 23

P.3d 1128 (2001). Under RCW 4.16.020, the adverse use must have existed for a

minimum of 10 years. “[TJhe party claiming to have adversely possessed the property

has the burden of establishing the existence of each element.” ITT Ravonier, Inc. v.

BeW, 112 Wn.2d 754, 757, 774 P.2d 6 (1989).

Here, the Lams’ adverse possession claim is meritless because the Lams

admitted they could not satisfy the statutory period “without the declarations of Na and

Nate, the declarations that we pulled back.” In short, the Lams failed to establish an

essential element of their adverse possession claim, and therefore, they did not

establish that there was a genuine issue of material fact. Thus, we conclude that the

~ The Bravos assert that CR 41 permits only the dismissal of an entire case and
not just a single claim, and that the adverse possession claim could only be dismissed
through a motion for amendment to the pleadings under CR 15. Because we conclude
that the Lams withdrew their CR 41 motion upon the trial court’s assertion of its right to
grant the motion with prejudice, we do not address the Bravos’ contention.
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No. 79018-8-1/12

trial court properly granted summary judgment on the issue of adverse possession.

Quiet Title Claim

The Lams next contend that the trial court erred in quieting title to the Bravos

Property “when no such relief was available or requested by the [Bravos] in [their]

motion for summary judgment.” We disagree.

“A trial court sitting in equity has broad discretionary power to fashion equitable

remedies.” Carbon v. Spokane Closing & Escrow, Inc., 135 Wn. App. 870, 878, 147

P.3d 605 (2006). And “[w]e review the authority of a trial court to fashion equitable

remedies under the abuse of discretion standard.” In re Foreclosure of Liens, 123

Wn.2d 197, 204, 867 P.2d 605 (1994).

Here, the Bravos did not request quiet title as the remedy for the summary

judgment motion on adverse possession and did not present it as a counterclaim.

Nonetheless, quiet title is an appropriate remedy for adverse possession claims. An

adverse possession claim clouds the title to the at-issue property, and the remedy of

quiet title resolves those competing ownership claims. Thus, quiet title is often sought

in response to adverse possession claims. ~ Maier v. Giske, 154 Wn. App. 6, 23

P.3d 1265 (2010). Indeed, the doctrine of adverse possession’s “most important[]”

purpose is to quiet title. Chaplin v. Sanders, 100 Wn.2d 853, 859-60, 676 P.2d 431

(1984). For these reasons, we conclude that the trial court acted within its discretion to

grant quiet title as an equitable remedy. This is particularly true here, where the Lams

have proven to be vexatious litigants and damages would be an inadequate remedy to

prevent future meritless claims. See Carpenter v. Folkerts, 29 Wn. App. 73, 76, 627

P.2d 559 (1981) (concluding that where the remedy at law was inadequate, an equitable

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No. 79018-8-1/13

remedy was appropriately imposed by the trial court).

The Lams disagree. The Lams claim that because there is no specification as to

which property is being quieted and the trial court is not allowed to provide a remedy

that was not explicitly requested, the trial court erred. First, the Lams cite no case law

for the proposition that a specification must be made as to the property for which title

has been quieted. The court quiets title to the property which is at issue in the dispute.

Here, that includes the alleged adversely possessed property and the easement. The

Lams cite White v. Kent Medical Center Inc. PS for the proposition that a court “will not

consider issues raised for the first time in a reply brief.” 61 Wn. App. 163, 168, 810

P.2d 4 (1991). White is not analogous. There, the party moving for summary judgment

“did not seek summary judgment on or otherwise put into issue the question of

proximate cause.” White, 61 Wn. App. at 169. We “h[e]ld that it was error for the court

to consider the proximate cause issue . . . and to rely on that issue as a basis for

granting summary judgment.” White, 61 Wn. App. at 169. Here, the Bravos did not

raise quiet title for the first time in a reply brief, and the trial court did not rely on the

remedy of quiet title in granting summary judgment. Rather, the court granted the

motion for summary judgment on the adverse possession claim and chose an

appropriate remedy. Thus, White does not control.

Exclusivity of the Easement

The Lams claim that the trial court erred in granting the Bravos’ motion for

summary judgment because a genuine issue of material fact exists as to whether the

easement excludes the Bravos from its use. We disagree.

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No. 79018-8-1/14

“‘An easement is a property right separate from ownership that allows the use of

another’s land without compensation.” Hanna v. Margitan, 193 Wn. App. 596, 606, 373

P.3d 300 (2016) (quoting M.K.K.I., Inc. v. Krueger, 135 Wn. App. 647, 654, 145 P.3d

411(2006)). “If the plain language of the instrument is unambiguous, we will not

consider extrinsic evidence.” Rainier View Court Homeowners Ass’n v. Zenker, 157

Wn. App. 710, 720, 238 P.3d 1217 (2010). To this end, “the mere inclusion of the

phase ‘for the exclusive use’ in the conveying instrument d{oes] not unambiguously

provide” an easement to the dominant tract at the exclusion of the servient track’s use.

Johnson v. Lake Cushman Maint. Co., 5 Wn. App. 2d 765, 784, 425 P.3d 560 (2018). If

a document is ambiguous, the court can consider extrinsic evidence, including the

original parties’ intent, determined from the easement document as a whole, Sunnyside

Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003), “circumstances of

the property when the easement was conveyed, and the practical interpretation given

the parties’ prior conduct.” Johnson, 5 Wn. App. 2d at 785.

Washington case law on exclusive easements is extremely limited. Johnson, a

Division Two case, is the only published Washington case discussing whether the term

“exclusive” creates ambiguity in a document conveying an easement. In Johnson,

property owner plaintiffs granted an easement to the defendant for a park and a road.

Johnson, 5 Wn. App. 2d at 770. The easement granted an “easement for the exclusive

use of the [grantee-defendant].” Johnson, 5 Wn. App. 2d at 770. The plaintiffs brought

an action to quiet title, and the defendant counterclaimed to quiet title to the easement,

which the defendant claimed included the right to exclude the plaintiffs from using the

easement in any way. Johnson, 5 Wn. App. 2d at 768, 773. The defendant filed a

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No. 79018-8-1115

motion for summary judgment; in response, the plaintiffs filed declarations stating that

portions of the easement had only ever been used as a driveway for the plaintiffs’

access to their estates. Johnson, 5 Wn. App. 2d at 774-75. The trial court granted the

defendant’s summary judgment in part and quieted title to the exclusive easement in

favor of the defendant. Johnson, 5 Wn. App. 2d at 769.

Division Two concluded that the trial court erred because the defendant “failed to

show that there was no genuine issue of material fact that their easement was intended

to be an exclusive easement.” Johnson, 5 Wn. App. 2d at 769. In particular, the

defendant had relied “solely. . . on the language in the easement document,” and

despite the easement’s proclamation of exclusivity, the instrument was ambiguous.

Johnson, 5 Wn. App. 2d at 783, 785. The court held that the term “exclusive” in an

easement could be interpreted as (1) a grant to the exclusion of all others except the

grantor, (2) an easement excluding all others, including the grantor, or (3) grant of an

easement in fee simple. Johnson, 5 Wn. App. 2d at 785. Thus, Division Two looked at

the extrinsic evidence provided by the plaintiffs and concluded that there was a genuine

issue of material fact. Johnson, 5 Wn. App. 2d at 785.

Here, like the easement document in Johnson, we conclude that the easement is

ambiguous for multiple reasons. First, as described above, the parties to the 2007

easement failed to select either exclusive or nonexclusive from the preprinted clause

within the easement. Second, exhibit C, which contains the “exclusive” language and is

titled “Legal Description,” is not cited by the easement. Instead, exhibit B is cited as the

“legal description” within the easement document. And exhibit B does not comment on

exclusivity. Finally, as in Johnson, “exclusive” is ambiguous, and the court must

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No. 79018-8-1/16

therefore look to extrinsic evidence to interpret the 2007 easement.

With regard to extrinsic evidence, the Bravos first point to the depositions of Nate

and Na. Nate testified that the 2007 easement’s grantor, Viengkham, constantly drove

and parked on the easement while he resided at the Bravos Property from 2004 to

2016. Both at and after the time of conveyance of the 2007 easement, the Bravo

Property continued to use the property encumbered by the easement. Thus, the

evidence provided shows that the only reasonable interpretation, given the grantor’s

conduct and the circumstances at the time of conveyance, is that the easement is not

exclusive, i.e, does not prohibit use for the benefit of the Bravo Property. See Hayward

v. Mason, 54 Wash. 649, 650-52, 104 P. 139 (1909) (holding that an ambiguous right of

way for the use of a ditch was not exclusive where the grantor used the ditch prior to

and following the deed’s conveyance, and “nothing in the deed, or in the circumstances

existing at the time [the right of way was granted] . . . indicate that the right of way

granted was an exclusive one”).

Moreover, unlike in Johnson, the Lams have failed to present any extrinsic•

evidence that raises a genuine issue of material fact as to whether the easement was

intended to exclude use for the benefit of the servient estate. The Lams point to two

additional pieces of evidence. First, the Lams cite the declaration of Timm. But

contrary to the Lams’ contentions, the declaration provides nothing in the way of clarity.

Timm merely proclaimed that the easement was meant to be “exclusive.” As it is within

an easement document itself, the term “exclusive” in Timm’s declaration is ambiguous.

And even when viewed in the light most favorable to the Lams, the declaration is

detrimental to their claim because Timm clarified that he did not understand “exclusion”

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No. 79018-8-1/17

to mean to the exclusion of the Bravo Property owner. According to Timm, the

Phonbandits were “to continue to enjoy the use of their land without impeding access in

any way to [the Lam Property], and not for the use of any other properties around these

parcels that may also need access now or in the future.”

Second, the Lams assert that an easement granted for ingress and egress in

1983—when compared to the 2007 easement—provides “[t]he reasonable inference.

that the [1983] easement was being modified to be exclusive.” The Lams cite no

authority for the proposition that a court should rely on a prior easement to interpret a

subsequent one. Additionally, the Lams failed to provide any evidence of the 1983

easement’s parties’ prior use or intent. Thus, the 1983 easement could have been

exclusive before the 2007 easement. And the Lams provide no evidence that either

prior property owner intended to modify the 1983 easement when documenting the

2007 easement. In short, the Lams’ contention that the 2007 easement was intended

as a modification is no more than speculation. This is insufficient to show a genuine

issue of material fact. See Becker, 165 Wn. App. at 245-46 (“The nonmoving party may

not rely on speculation, argumentative assertions, ‘or in having its affidavits considered

at face value.” (quoting Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13,

721 P.2d 1 (1986))).

The Lams make five additional claims revolving around the inclusion and

consideration of exhibit C. The claims can be summarized and reduced to the following

three assertions: (1) because the court did not consider exhibit C, the court’s decision

“did not construe the easement as a whole, [and] . . . did [not] give meaning to each part

of the easement;” (2) exhibit C created a genuine issue of material fact; and

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No. 79018-8-1/18

(3) summary judgment “improperly resolve{dJ the factual issue of the intentions of the

original parties when the easement was conveyed.” (Emphasis omitted.) As discussed,

exclusive is an ambiguous term, and the easement, as a whole, including Exhibit C, was

ambiguous. Thus, the Lams’ additional assertions fail.

Finally, the Lams rely on Sunnyside Valley Irrigation District for the proposition

that the trial court failed to consider the easement as a whole. There, the plaintiff, the

dominant tract holder to an easement allowing for the maintenance of an irrigation ditch,

brought suit seeking declaratory relief that the easement on the defendant’s land could

be expanded to provide adequate space for maintenance. Sunnyside Valley Irrig. Dist.,

149 Wn.2d at 876. The trial court agreed and ordered the removal of trees and other

property within a particular area to allow for the necessary expansion. Sunnyside Valley

Irrig. Dist., 149 Wn.2d at 879. Our Supreme Court affirmed because the document

clearly allowed for enlargement of the ditch’s laterals and, thus, enlargement of the area

to be used for maintenance thereof as set forth in the easement document. Sunnyside

Valley Irrig. Dist., 149 Wn.2d at 884. Despite the Lams’ contentions, it is clear from the

2007 easement as a whole that the intent is unclear and must be determined looking at

the circumstances surrounding conveyance and the prior use of the easement by the

grantor. Thus, Sunnyside is unpersuasive.

Attorney Fees and Sanctions

Declaration of Brian Muchinsky

As an initial matter, the Lams claim that the trial court erred by failing to strike the

declaration of Brian Muchinsky. We disagree.

Muchinsky represented Powell Construction LLC, which the Lams sued in early

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No. 79018-8-1/19

2017. He also represented the Bravos’ tenants against prior antiharassment petitions

brought by the Lams. Muchinsky admitted his biases on these bases but filed a

declaration in support of the Bravos’ motion for attorney fees and sanctions. The Lams

also point out that in their lawsuit against Powell Construction, the court reduced

Muchinsky’s request for attorney fees by 41 percent. But the Lams cite no case law to

support their argument that the fee reduction or Muchinsky’s admitted bias required the

trial court to strike the declaration. “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.” DeHeer v. Seattle Post-Intelliqencer, 60

Wn.2d 122, 126, 372 P.2d 193 (1962). Because the Lams cite no authority in support of

their argument, we are not persuaded.

Attorney Fees and Costs Below

The Lams contend that the trial coi~irt erred by granting attorney fees and costs to

the Bravos. We disagree.

“When reviewing an award of attorney fees, the relevant inquiry is first, whether

the prevailing party is entitled to attorney fees.” Unifund CCR Partners v. Sunde, 163

Wn. App. 473, 483-84, 260 P.3d 915 (2011). An award of attorney fees must be based

in “contract, statute, or recognized ground of equity.” Durland v. San Juan County, 182

Wn.2d 55, 76, 340 P.3d 191 (2014). We review de novo whether the trial court had a

legal basis for awarding attorney fees. Durland, 182 Wn. App. at 76. The second

inquiry is “whether the fee award is reasonable.” Unifund CCR Partners, 163 Wn. App.

at 483-84. But when attorney fees are authorized, “in order to reverse that award, the

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No. 79018-8-1/20

opponent must show that the trial court manifestly abused its discretion.” Unifund CCR

Partners, 163 Wn. App. at 484 (emphasis added).

Under RCW 7.28.083(3),

[t]he 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.

When only certain claims support fee recovery under a statute, “the attorney fees award

must properly reflect a segregation of the time spent on issues for which attorney fees

are authorized from time spent on other issues.” Hume v. Am. Disposal Co., 124 Wn.2d

656, 672, 880 P.2d 988 (1994). The party seeking attorney fees has the burden of

segregating unrelated expenses. Loeffelholz v. Citizens for Leaders with Ethics &

Accountability Now (C.L.E.A.N.), ll9Wn. App. 665,690,82 P.3d 1199 (2004).

Here, as discussed, the Lams did assert an adverse possession claim, and the

Bravos prevailed on that claim. Therefore, under RCW 7.28.083(3), the trial court had

statutory authority to award fees and costs. As such, the issue before us is whether the

amount was appropriate. In its order granting fees, the court explained:

The court has carefully reviewed the Declaration of counsel (and
billing entries) as well as the Declaration of Mr. Muchinsky and finds the
attorney fee award of $46,507.53 to be reasonable and necessarily
incurred by the Defendants. The court reduced the amount (from
$53,507.53) to account for segregating work done on the adverse
possession claim from the easement claim.

As the court noted, it was required to and did exclude fees from time spent on the

easement exclusivity claim. Although a court must make a record of fee segregation,4 a

See Travis v. Wash. Horse Breeders Ass’n, 111 Wn.2d 396, 411, 759 P.2d 418
(1988).
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No. 79018-8-1/21

court need not identify each time entry it segregates out. Instead, the court must review

the record and the parties’ arguments in order to calculate by how much the fees must

be reduced and state that amount. The court did so here, concluding that the award

should be reduced by $7,000 after “careful[ J review.” And the Lams have failed to show

exactly how the calculation is inaccurate or arbitrary or which fees the trial court

improperly included. Instead, the Lams contest the same aspects of the award that they

contested below and claim that the award’s reduction amount is “grossly inadequate.”

But they have not pointed to sufficient evidence that the trial court failed to exclude the

contested fees.

The Lams state that the attorneys’ work on initial pleadings, discovery, mediation,

strategizing, and trespass do not mention or do not relate to the adverse possession

claim. The Lams contend that the work on initial pleadings, discovery, and mediation do

not mention adverse possession and total $9,146.50. Although it does not mention

adverse possession, the work necessarily involves some response to the adverse

possession claim that the Lams brought in the TRO. Furthermore, some claims will be

“inseparable” despite involving the nonrecoverable easement work. See, ~ Blair v.

Wash. State Univ., 108 Wn.2d 558, 572, 740 P.2d 1379 (1987) (affirming the trial

court’s determination that the “attorney fees incurred for the successful and

unsuccessful claims were inseparable” and the court’s award of all attorney fees). As

such, the Lams’ mere conclusions that the pleadings, discovery, and mediation do not

involve adverse possession work are insufficient to explain how the fees are unrelated

to the adverse possession claim and therefore are improper. Additionally, the Lams

contend that the fees for opposing the TRO and for the motion to compel the

21
No. 79018-8-1/22

Phonband its to appear at their depositions do not relate to adverse possession, but the

TRO explicitly brings an adverse possession claim and the Phonbandits’ declarations

were used to support the Lams’ claim. In short, the Lams’ contentions are unpersuasive

because they failed to show that the included fees were not related to the adverse

possession claim and failed to show how the trial court manifestly abused its discretion.

The Lams, however, contend that the court erred in awarding certain costs to the

Bravos because the costs are not recoverable under RCW 4.84.010, and that the court

erred by awarding paralegal fees.5 First, because the trial court properly awarded fees

under RCW 7.28.083, the limitations on costs under RCW 4.84.010 do not apply.

Second, the Lams did not provide evidence that any improper clerical paralegal fees

were included by the trial court in the award. Thus, we are not persuaded.

CR 11 Sanctions

The Lams also contend that the trial court erred in imposing sanctions under

CR11. Wedisagree.

Under CR 11(a), “[e]very pleading, motion, and legal memorandum of a party.

shall be dated and signed” by the party or the party’s attorney. The signature certifies

that the party or its attorney

has read the pleading, motion, or legal memorandum, and that to the best
of the party’s or attorney’s knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances:
(1) itis well grounded in fact;
(2) it is warranted by existing law or a good faith argument for the
extension, modification, or reversal ofexisting law or the establishment of
new law;

~ To the extent that the Lams argue that paralegal fees are never recoverable,
they are incorrect. See Absher Constr. Co. v. Kent Sch. Dist. No. 415, 79 Wn. App.
841, 845, 917 P.2d 1086 (1995) (providing six factors the court considers when it
determines whether a non lawyer’s work may be paid in an award for attorney fees).
22
No. 79018-8-1/23

(3) it is not interposed for any improper purpose, such as to harass
or to cause unnecessary delay or needless increase in the cost of
litigation; and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on a lack of
information or belief.

CR 11(a) (emphasis added). When a party violates this rule, the court—on a motion or

its own initiative—may impose an appropriate sanction, “which may include an order to

pay to the other party or parties the amount of the reasonable expenses incurred

because of the filing . . , including a reasonable attorney fee.” CR 1 1(a)(4). The

legislature enacted CR 11 “to deter baseless filings and to curb abuses of the judicial

system.” Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992)

(emphasis omitted). We review CR 11 sanctions for an abuse of discretion. King

County Water Dist. No. 90 v. City of Renton, 88 Wn. App. 214, 230, 944 P.2d 1067

(1997).

In In re Recall of Lindguist, the petitioners knowingly omitted and misquoted

material portions of documentary evidence to justify a case that was intended to harass

the respondent, refused to comply with subpoenas, and knew that a previous recall

petition for the same issue had been dismissed. 172 Wn.2d 120, 136-38, 258 P.3d 9

(2011). Our Supreme Court determined that “[s]ufficient evidence show[ed] that

petitioners brought the recall petition with charges they knew to be frivolous, they did so

for the purpose of harassment, and they acted in bad faith throughout the recall

process.” In re Recall of Lindguist, 172 Wn.2d at 136. The court therefore upheld a

CR 11 sanction of attorney fees against the petitioners. In re Recall of Lindguist, 172

Wn.2d at 137-39.

Similarly, here, the Bravos pointed to sufficient sanctionable conduct. First, the

23
No. 79018-8-1124

Lams knowingly filed three false declarations. The Lams failed to investigate the truth

of the declarations, as evidenced by the Lams’ later withdrawal thereof and the wholly

inconsistent testimony of the Phonbandits. Additionally, there was no basis in law for

the Lams’ claim that they were entitled to receive rental income from the Bravos due to

their tenants’ use of the easement, and there was no basis in fact for the Lams’

assertion of adverse possession rights. In short, sufficient evidence was presented to

conclude that the Lams have abused the judicial system by filing lawsuits not well

grounded in fact or based on law. Thus, the trial court did not abuse its discretion in

imposing sanctions.

As a final matter, the Lams contend that they did not receive sufficient notice of

the potential for sanctions and that the lack of notice violated their due process rights.

King County Water Dist. No. 90 is instructive. There, following trial, the district moved

for sanctions in a reply to the city’s objection to a cost bill. King County Water Dist. No.

~, 88 Wn. App. at 231. The trial court did not set a time for a hearing on the motion

and signed the order only two days after the city was served the reply by mail. King

County Water Dist. No. 90, 88 Wn. App. at 231. We concluded that the city, which

failed to reply to the motion, “was given sufficient notice and opportunity to be heard on

the issue of sanctions.” King County Water Dist. No. 90, 88 Wn. App. at 231. Here, the

Lams were able to and did respond to the Bravos’ motion for sanctions. Thus, we

conclude that the Lams received sufficient notice.

Attorney Fees on Appeal

The Bravos contend they are entitled to attorney fees and costs on appeal

pursuant to RAP 18.1 and RCW 7.28.083(3). “A party is entitled to attorney fees on

24
No. 79018-8-1125

appeal if a contract, statute, or recognized ground of equity permits recovery of attorney

fees at trial and the party is the substantially prevailing party.” Hwanq v. McMahill, 103

Wn. App. 945, 954, 15 P.3d 172 (2000). RCW 7.28.083(3) provides a statutory basis

for the award of attorney fees to the prevailing party of an adverse possession claim on

appeal. Workman v. Klinkenberq, 6 Wn. App. 2d 291, 308-09, 430 P.3d 716 (2018).

Because the Bravos are the prevailing party on appeal, we award the Bravos their

reasonable attorney fees and costs on appeal subject to their compliance with

RAP 18.1(d).

For the foregoing reasons, we affirm.

~
WE CONCUR:

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