No. 26517-0-III.The Court of Appeals of Washington, Division Three.
October 14, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-2-01647-0, Salvatore F. Cozza, J., entered October 19, 2007.
Affirmed
by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Brown, J.
KULIK, J.
This is an adverse possession case. Shelley and Michael Bartlett, and their limited liability company, Alki East, LLC (collectively referred to as the “Bartletts”), appeal the trial court’s judgment quieting title to a disputed tract of land in their neighbor, Judy Belous. We affirm the trial court because substantial evidence supports the findings of fact, and the findings support the court’s conclusion of adverse possession, trespass, and waste.
FACTS
On July 30, 1956, William J. Schafer conveyed to Roy A. Betlach and Bernadine Betlach, husband and wife, an 80-acre parcel of land legally described as the “South half of the Southeast quarter of Section 31, Township 25 North, Range 44 EWM situated in Spokane County, State of Washington.” Clerk’s Papers (CP) at 78.
On April 15, 1968, the Betlaches conveyed a small portion of that property to A. Howard Casey and Elsie Casey by statutory warranty deed. When the Betlaches conveyed the property to the Caseys, they reserved all oil and mineral rights, and all rights to a mineral water well in the statutory warranty deed. The Betlaches also reserved certain rights in a seasonal spring, as well as a right of first refusal should the Caseys ever sell. According to Steve Betlach, the oldest son of the Betlaches, his family commonly referred to this land as the “Caseys’ five,” and he believed that it included approximately five acres. Report of Proceedings (RP) at 14. The Betlach parcel adjoined the Casey parcel on the Caseys’ northern and western boundary lines.
The Casey property was fenced on all four sides at the time of the conveyance. The fences surrounding the Casey property had, in fact, been built by Mr. Schafer sometime in the 1950s. These fences were still in existence when the Betlaches bought the property from Mr. Schafer. While the Betlaches had performed some maintenance on the fence, the location of the fence line remained unchanged.
The Caseys moved onto the property on October 20, 1969. Shortly thereafter, the Caseys began making improvements to the land, which included building a house, establishing a garden, planting fruit, nut and conifer trees, installing a sprinkler system, constructing a well, and maintaining the fencing. The garden and various species of fruit and nut trees, located on land later disputed by the Betlaches, were planted, maintained, and harvested by the Caseys. During their possession of the property, the Caseys treated the land within their fencing, including the disputed land, as their own. The Caseys and Betlaches were described as good neighbors and good friends and provided many neighborly accommodations to each other over the years. At no point during their relationship as neighbors did any dispute concerning boundary lines ever arise. According to Steve Betlach, his family recognized the fence line as the boundary line between the Caseys’ land and their own. It was also Steve Betlach’s understanding that everything inside the fence line was the Caseys’ property to use as they wished.
On August 14, 2000, the Caseys conveyed their property to Robert and Judy Belous. The statutory warranty deed contained the same legal description of the property that was used in the Betlach to Casey deed. At the time of the purchase, Ms. Casey specifically told Ms. Belous that the fence lines were the boundary lines of the property. Accordingly, Ms. Belous understood that the land they were purchasing was the land enclosed by the four fence lines that surrounded the property. The Belouses moved onto the land and continued to maintain the fence and other improvements.
In 2002, the Betlaches conveyed their remaining land into a revocable living trust, known as the Betlach Living Trust, for the benefit of their five children. Shelley Bartlett is one of the Betlach children.
Following the deaths of Mr. and Ms. Betlach, the co-trustees commissioned a survey by Steven W. Tripp of Simpson Engineers, Inc. The survey, which was completed on March 20, 2004, is the only known survey of the boundary lines between the Betlach land and the adjoining Casey/Belous land. The survey concluded that the fence on the west side of the Casey property was not located on the true boundary line as contained in the legal description of their deed. The land between the fence and the legal description of the property line is referred to as the “disputed land” and encompasses an area of approximately .45 acres. CP at 13.
Ms. Belous first became aware of the Simpson survey in late April 2004 when she discovered the survey pins on the property marked “parcel C.” RP at 76. Prior to this survey, no one had ever told Ms. Belous they claimed to own any of the land located within her fences.
The land which adjoins Ms. Belous’s land to the west and north, including the disputed land, is presently owned by Alki East, LLC (Alki), which acquired the land in February 2006, from the Betlach Living Trust by bargain and sale deed. Shelley Bartlett and her husband, Michael Bartlett, formed Alki for the purpose of acquiring a portion of the trust property.
In an attempt to remedy the apparent discrepancy between the survey and the fence line, Ms. Belous contacted both Shelley Bartlett and her sister and co-trustee, Marcy Betlach. Ms. Belous requested that they sign a quitclaim deed to the disputed land. However, because the Betlach children were embroiled in litigation and appeals relating to the living trust, Ms. Belous was unable to obtain a decision from the Betlach family concerning a quitclaim deed.
On March 30, Ms. Belous directed her attorney to send a letter to the Bartletts advising them of her claim to the disputed land. Ms. Belous’s purpose in sending the letter was to inform the Bartletts of her ownership claim to the land within the fence line and to resolve any dispute with a boundary line adjustment.
On April 16, Michael and Shelley Bartlett and another individual, using a tractor and large pickup truck, tore down the fence and attempted to take possession of the disputed land. Ms. Belous reported being shocked by the Bartletts’ actions and contacted the Spokane County Sheriff’s Office by calling 911. When police arrived, however, they refused to intervene in the matter. Mr. Bartlett returned on Monday and ripped up sprinkler pipes from Ms. Belous’s garden, breaking them underground. Mr. Bartlett later testified that he was unconcerned as to whether his actions would be upsetting and distressing to Ms. Belous.
Procedural History Ms. Belous filed this action in Spokane County Superior Court on April 17, 2006, seeking to quiet title in the disputed land, a permanent injunction, and damages due to trespass and waste. Ms. Belous asserted that she and her predecessors in interest acquired ownership rights in the disputed property through adverse possession and mutual recognition and acquiescence in the boundary line established by the fence. That same day, the trial court entered a temporary restraining order and order to show cause. The Bartletts replied that any possession of the disputed land by Ms. Belous and her predecessors was permissive and was not intended by the parties to convey an ownership interest in the land. The Bartletts admitted to moving the fence, but asserted that it was their lawful right to do so.
On December 19, 2006, the Bartletts filed a motion to disqualify Ms. Belous’s attorney, J. Steve Jolley, due to an alleged conflict of interest. The Bartletts claimed that Mr. Jolley’s partner, David Herman, had previously done legal work for the Betlach Living Trust regarding the property in question. The trial court denied the motion to disqualify, finding that there was no conflict of interest for Mr. Jolley or his law firm to represent Ms. Belous in this case.
After a bench trial, the court found in favor of Ms. Belous on her claims of adverse possession, trespass, and waste. The court entered its findings of fact and conclusions of law, a judgment quieting title to the disputed land in Ms. Belous, a money judgment awarding Ms. Belous damages and attorney fees, and a permanent injunction against the Bartletts.
The Bartletts filed a motion for reconsideration and/or a new trial. The trial court denied the motion. The Bartletts subsequently filed a motion for relief from judgment pursuant to CR 60, which was also denied. This appeal followed.
ANALYSIS
The Bartletts first contend that the trial court erred by concluding that Ms. Belous acquired title to the disputed land by adverse possession and acquiescence because there was evidence that the Caseys’ and Belouses’ use of the disputed area was permissive. As a result, they argue that Ms. Belous could not meet her burden of establishing that she or her predecessors had hostile and open and notorious possession of the disputed land, two of the necessary elements of adverse possession. They also contend the trial court’s conclusion regarding acquiescence fails on that same basis. They maintain that Roy Betlach’s acts demonstrated that he recognized the fence as a barrier rather than a boundary.
A trial court’s findings will not be disturbed if there is substantial evidence to support them. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959). Substantial evidence is evidence sufficient to persuade a fair-minded and rational person of the truth of the declared premise. Am. Nursery Prods., Inc. v. Indian Wells Orchards, 115 Wn.2d 217, 222, 797 P.2d 477 (1990). The deference accorded under the substantial evidence standard recognizes that the trier of fact is in a better position than the reviewing court to evaluate the credibility and demeanor of the witnesses. State v. Hill, 123 Wn.2d 641, 646, 870 P.2d 313
(1994). Questions of law are reviewed de novo. Mason v. King County, 134 Wn. App. 806, 810, 142 P.3d 637 (2006).
Boundaries between adjoining properties which are in conflict with the true boundary, as revealed by a subsequent survey, may be established, under appropriate circumstances, through the following doctrines which have been recognized in Washington: (1) adverse possession; (2) parol agreement of the adjoining landowners; (3) estoppel in pais; (4) location by a common grantor; and/or (5) mutual recognition and acquiescence in a definite line by the interested parties for a long period of time. Lamm v. McTighe, 72 Wn.2d 587, 591, 434 P.2d 565 (1967).
To acquire title by adverse possession, the possession must be open and notorious, actual and uninterrupted, exclusive, hostile, and continue for a period of 10 years. Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 209-10, 936 P.2d 1163 (1997). “Adverse possession is a mixed question of law and fact: whether the essential facts exist is for the trier of fact, but whether the facts constitute adverse possession is for the court to determine as a matter of law.” Anderson v. Hudak, 80 Wn. App. 398, 401-02, 907 P.2d 305 (1995).
In the settlement of boundaries, the doctrine of mutual recognition and acquiescence supplements adverse possession. Lilly v. Lynch, 88 Wn. App. 306, 316, 945 P.2d 727 (1997). To establish a boundary line by recognition and acquiescence, the following elements must be shown:
(1) The line must be certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.; (2) in the absence of an express agreement establishing the designated line as the boundary line, the adjoining landowners, or their predecessors in interest, must have in good faith manifested, by their acts, occupancy, and improvements with respect to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary line; and (3) the requisite mutual recognition and acquiescence in the line must have continued for that period of time required to secure property by adverse possession.
Lamm, 72 Wn.2d at 593. The burden of proof is on the party claiming ownership by mutual acquiescence to prove each element of the doctrine by clear, cogent, and convincing evidence. Lilly, 88 Wn. App. at 316-17. Where the burden of proof is by clear, cogent, and convincing evidence, appellate courts test for substantial evidence by asking whether it makes each element of the claim “highly probable.” In re Marriage of Schweitzer, 132 Wn.2d 318, 329, 937 P.2d 1062 (1997) (quoting In re Det. of LaBelle, 107 Wn.2d 196, 209, 728 P.2d 138 (1986)).
Adverse Possession
The Bartletts contend that the trial court’s conclusions were in error because any use of the disputed land by Ms. Belous or the Caseys was permissive. They note that if the true owner gives the claimant or his predecessor in interest express or implied permission to occupy the land, the hostility element of adverse possession is negated. This argument is unpersuasive, as the Bartletts fail to cite to any evidence in the record supporting the existence of an express agreement beyond a citation to their own motion.
The Bartletts next argue that there is ample evidence to support a finding of implied permission based on the close relationship that existed between the Betlaches and the Caseys. The only evidence the Bartletts point to is the fact that the families shared the use of a gate for entry onto parts of the Casey property and that both families’ children used a hay shed on the disputed land as a shelter when waiting for the school bus during inclement weather. Steve Betlach recounted that his family accessed the Casey/Belous property through the gates in the context of discussing the neighborly accommodations and favors which were exchanged between the families. Importantly, Steve Betlach stated: “The Caseys allowed us access through their property via the fence line in question.” RP at 18 (emphasis added).
In contrast, there is substantial evidence that Ms. Belous, and the Caseys before her, had hostile and open and notorious possession of the disputed land. These findings in turn support the trial court’s conclusion that Ms. Belous acquired title to the disputed land by virtue of adverse possession. The record shows that the Caseys and Belouses used all of the land within the fence lines, including the land located within the disputed area, as a true owner would use the land. In particular, the Caseys established a garden, planted a significant number of fruit, nut and conifer trees, installed a sprinkler system, and maintained the fencing on the disputed land. After moving onto the property in 2000, the Belouses — and Ms. Belous following the death of her husband in 2001 — continued to maintain the fence and other improvements.
To establish the hostility element of adverse possession, a claimant need only “treat the land as his own as against the world throughout the statutory period.” Chaplin v. Sanders, 100 Wn.2d 853, 860-61, 676 P.2d 431
(1984). Importantly, “[t]he nature of his possession will be determined solely on the basis of the manner in which he treats the property.” Id.
at 861. Moreover, the Caseys’ and Belouses’ use of the land was sufficient to put the Betlaches on notice of their claim of ownership. “[T]he requirement of open and notorious is satisfied if the title holder has actual notice of the adverse use throughout the statutory period.”Id. at 862.
Mutual Agreement and Acquiescence
Both parties’ predecessors in interest, the Caseys and the Betlaches, recognized the fence line as the boundary line for over 32 years before Ms. Belous and her late husband purchased the property in August 2000. Steve Betlach testified that the fences were in existence when his parents bought the property in 1956, and those fence lines remained unchanged when they conveyed a portion of the land to the Caseys in 1968. At trial, Steve Betlach was asked what his understanding was of the property that was being sold. He testified: “The property that Roy Betlach sold Howard Casey and Elsie Casey was delineated by the fence line that existed at the time of this photo, approximately five acres.” RP at 14. Substantial evidence exists that the fence was regarded as the boundary between the Casey and Betlach properties.
At all times during their possession of the property, the Caseys treated the land within their fencing, including the disputed land, as their own. The Caseys made substantial improvements to land in the disputed area and did not ask the Betlaches’ permission before doing so. Likewise, the Betlaches accepted the fence line as the boundary. Steve Betlach also testified as to the disputed land as follows: “To my understanding, it was their [the Caseys’] property to do as they wished. . . . Everything inside the fence line was their property was our understanding.” RP at 18. When asked again if he had ever heard the Caseys ask his family’s permission to use the disputed land, Steve Betlach replied, “None. It was theirs to use. They owned it.” RP at 19. In addition, the deposition of Ms. Casey revealed that the garden and various species of fruit and nut trees located on the disputed land were planted, maintained, and harvested exclusively by the Caseys. Ms. Casey also testified that during her possession of the disputed land, no one told her that the land was not her property. Accordingly, there is substantial evidence that Ms. Belous and her neighbors recognized the fence line as the boundary until the Simpson survey was completed in March 2004 when the encroachment was first discovered.
Here, the parties’ predecessors in interest “in good faith manifested, by their acts, occupancy, and improvements with respect to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary line” for a period of over 32 years. Lamm, 72 Wn.2d at 593. In conclusion, there was substantial evidence to support the trial court’s findings. These findings, in turn, support the trial court’s conclusion that Ms. Belous’s claims of adverse possession and acquiescence are established as a matter of law.
Waste and Trespass
The Bartletts next contend that the trial court erred by finding that they had committed waste and trespass under RCW 4.24.630. The Bartletts argue that their actions did not constitute waste because they did not enter upon the land of another. They assert that they owned the land and could not, therefore, commit waste.
RCW 4.24.630(1) provides for damages for wrongful waste or injury to land and states in relevant part:
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.
The statute further provides that 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.” RCW 4.24.630(1). Damages are recoverable under this provision, including damages for the market value of the property removed or injured, and damages for injury to the land, including the costs of its restoration. RCW 4.24.630(1). In addition, the person is liable for reimbursing the injured party for the party’s costs, including reasonable attorney fees and other litigation-related costs. RCW 4.24.630(1).
“Waste” is an “unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession which results in its substantial injury.” Graffell v. Honeysuckle, 30 Wn.2d 390, 398, 191 P.2d 858 (1948). Waste is also “the violation of an obligation to treat the premises in such manner that no harm be done to them, and that the estate may revert to those having an underlying interest undeteriorated by any willful or negligent act.” Id. Voluntary waste is the commission of some deliberate or voluntary destructive act, such as removing things fixed to and constituting a material part of the freehold. Id.
The Bartletts’ sole argument on appeal is that the disputed land belonged to them until the court entered a judgment quieting title in Ms. Belous. We note that the Bartletts cite no authority in support of this position.
In Mullally v. Parks, the court was faced with a similar boundary dispute primarily between two adjoining landowners — the Mullallys and the Schroeders. Mullally v. Parks, 29 Wn.2d 899, 900, 190 P.2d 107
(1948). Following a survey of his property, Mr. Schroeder met with Mr. Mullally to discuss the results, which placed his northern boundary line between 20 and 25 feet north of the line established by two previous surveys. Id. at 905. Mr. Mullally responded that he wanted the boundary line separating their lots to remain as it was originally. Id. Despite the fact that he knew that the boundary line was in dispute, and without Mr. Mullally’s consent or knowledge, Mr. Schroeder then entered upon the land in dispute and proceeded to cut down several trees. Id. The trial court held that the parties’ predecessors in interest had established the boundary line between their two lots by mutual recognition and acquiescence and quieted title to the disputed property in the Mullallys. Id. at 908. On appeal, the Mullally court upheld the trial court’s determination of mutual recognition and acquiescence. Id.
Here, the evidence showed that the Bartletts entered upon the disputed land on April 16, 2006. Ms. Belous was in possession of the land at that time and against her wishes, and with a total lack of concern as to the distress their actions would cause Ms. Belous, the Bartletts proceeded to tear down the fence. That area was the subject of a bona fide boundary dispute and the Bartletts were aware of Ms. Belous’s claim to the disputed land, as the subject had been under discussion between the parties since the time Simpson Engineers completed the survey in March 2004. Further, the Bartletts had received correspondence in March 2006 from Ms. Belous’s attorney advising them of Ms. Belous’s possession of the disputed land and her claim of ownership.
At the time of trial Ms. Belous was 71 years old. She testified that she tried to maintain possession of the land but was physically incapable of stopping the Bartletts. When she saw Mr. Bartlett moving the fence, she approached him to discuss the matter but Mr. Bartlett said he did not want to listen to her, put his hands over his ears, and proceeded to turn his back on Ms. Belous and walk away. At that point, Ms. Belous called 911 and requested assistance from the Spokane County Sheriff’s Office. Officers arrived approximately two hours later, but ultimately refused to intervene. The next morning, Mr. Bartlett returned to the disputed land and ripped up the sprinkler system which Ms. Belous used to irrigate her garden.
Under these circumstances, the trial court correctly found that the Bartletts’ actions constituted waste and trespass and violated RCW 4.24.630
by wrongfully, intentionally, and unreasonably entering upon land and damaging improvements and personal property on the land. The court properly entered judgment against them for treble damages. It is no defense that the Bartletts had even a reasonable belief of ownership due to the Simpson survey. See Mullally, 29 Wn.2d at 911.
Motion to Disqualify
The Bartletts also contend that the trial court erred by denying their motion to disqualify Ms. Belous’s attorney, Mr. Jolley, from representing her further in this action. The Bartletts argue that the trial court incorrectly found that there was no conflict of interest despite the fact that Mr. Jolley’s partner, David Herman, had previously represented Shelley Bartlett’s mother, Bernadine Betlach, in matters involving some of the land at issue here. Consequently, they argue that while Mr. Jolley did not represent Ms. Betlach, he should have been precluded from representing Ms. Belous under RPC 1.10 because Mr. Herman was disqualified from representing her under RPC 1.9.
We review a trial court’s decision not to disqualify an attorney for an abuse of discretion. Pub. Util. Dist. No. 1 v. Int’l Ins. Co., 124 Wn.2d 789, 811-12, 881 P.2d 1020 (1994). RPC 1.9, concerning duties to former clients, provides in relevant part as follows:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter
in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(Emphasis added.) In addition, if an individual in a law firm is precluded by RPC 1.9 from representing a particular client, then all the members of the law firm are likewise prohibited from representing the client under RPC 1.10. RPC 1.10(a).
The record shows that on July 6, 2000, Mr. Herman met with Ms. Betlach and her daughter, Marcy, regarding her estate. Mr. Herman had no independent recollection of his representation of Ms. Betlach, other than what was shown by his file. Mr. Herman’s itemized billing indicates that the purpose of the meeting was to discuss the merits of drafting a trust versus a will. His billing records also show that he had a telephone conference with Ms. Betlach on July 26, 2000, “regarding Release of First Right of Refusal; Review reservations in Deed.” CP at 164. Mr. Herman’s file, however, includes a note in his handwriting which states that Ms. Betlach never got back to him with information to do a will.
Importantly, Mr. Herman’s file contains no copies of a draft or final trust agreement, will, power of attorney, or other estate planning documents. Thus, it appears from the record that the Betlach Living Trust was drafted by another attorney and came into effect after Mr. Herman’s representation of Ms. Betlach terminated. Further, Mr. Herman never performed any services for, or represented, the Betlach Living Trust, Alki, Shelley Bartlett, or Michael Bartlett. Accordingly, they are not former clients of either Mr. Jolley or Mr. Herman.
Moreover, the representations do not involve substantially-related matters. Mr. Herman did not represent either Ms. Betlach or the Caseys in connection with the Caseys’ sale of their parcel of land to the Belouses. The record shows that his participation in the Casey to Belous transaction was limited to him suggesting the addition of the last sentence of the “Release of First Right of Refusal” concerning the reservation of all oil and mineral rights and rights to the mineral well. CP at 160. With the exception of that single sentence, the release was drafted by another attorney.
Most significantly, Mr. Herman expressly stated in a declaration that he did not discuss encroachments or boundary line disputes with Ms. Betlach. In fact, at the time Mr. Herman met with Ms. Betlach in July 2000, no one was aware that the fence lines separating the Betlach and Casey/Belous properties did not correspond with the legal description of the Casey/Belous property as the survey had not yet been performed. During oral argument on the motion to disqualify, counsel for the Bartletts, Greg Devlin, willingly acknowledged that the representation did not pertain to the property line dispute. Although the release of first right of refusal involved the same land now in dispute, this fact alone is insufficient to establish a conflict of interest.
Based on this evidence, the trial court did not err by finding that the matters were not substantially related and that no conflict of interest was present. Accordingly, the trial court properly denied the Bartletts’ motion to disqualify.
Admission of Evidence — Newspaper Article
Finally, the Bartletts contend that the trial court erred by refusing to admit a 1979 Spokesman Review newspaper article they offered as evidence. The article contains various statements attributed to Roy Betlach concerning water from a mineral spring. The Bartletts claim that the newspaper article is evidence that Mr. Betlach asserted ownership of the disputed area. On appeal, they argue the article qualifies as an exception to the hearsay rule under both ER 803(a)(16), as an ancient document, and under ER 803(a)(15), as a statement that affects an interest in real property. The Bartletts contend the trial court should have allowed the article to be admitted as evidence of Mr. Betlach’s intent to not convey the disputed property to the Caseys.
A trial court has broad discretion to determine the admissibility of evidence and its decision whether to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Moreover, an appellate court may uphold a trial court’s evidentiary rulings on any proper grounds supported by the record. State v. Williams, 137 Wn. App. 736, 743, 154 P.3d 322
(2007).
Here, the trial court did not abuse its discretion by refusing to admit the article. At the time the trial court ruled on the evidence, the Bartletts’ trial counsel, Mr. Devlin, stated to the trial court:
MR. DEVLIN: Mr. Jolley objects to it on the basis of hearsay, which it obviously is. There are a couple of statements made, quotes attributed to Roy Betlach in that article. And it would be my hope that the Court would admit it. Frankly, I have been wrestling with exceptions to the hearsay rule. And I don’t think it’s a business record. I don’t know what it is.
THE COURT: I am trying to recall. Isn’t there an exception for newspaper articles or periodicals or something?
MR. DEVLIN: There might be.
THE COURT: Yeah. Hang on.
MR. DEVLIN: I will also indicate to the Court that the article doesn’t have a date on it.
Anyway, that is not a huge issue, Your Honor, but I prefer it in. But if it is objected to and stricken, then so be it too.
RP at 7.
Ms. Belous’s counsel had objected to the article on the basis that it was hearsay within hearsay, unreliable evidence, and not helpful to deciding the issues before the court. The trial court ruled that in the absence of an exception to the hearsay rule, Ms. Belous’s objection had to be maintained. The above exchange shows that the Bartletts’ trial counsel failed to properly argue that any exception to the hearsay rule applied.
Nonetheless, the trial court’s decision not to admit the article, even if error, was harmless. Mr. Devlin told the court that the article “is not a huge issue,”[1] and now on appeal he fails to explain how the court’s failure to admit the article was prejudicial. An error without prejudice is not reversible error. State v. White, 72 Wn.2d 524, 531, 433 P.2d 682 (1967). Moreover, the article would not have materially affected the trial court’s decision, as the Bartletts presented other evidence in support of their contention that the use of the disputed land was permissive and that the fence was not the boundary line. See Ashley v. Hall, 138 Wn.2d 151, 160, 978 P.2d 1055 (1999).
On this record and in light of counsel’s statements, the Bartletts fail to establish that the trial court abused its discretion or committed reversible error.
We affirm the trial court’s order quieting title in Ms. Belous and awarding damages, attorney fees, and a permanent injunction. We also award attorney fees on appeal pursuant to RAP 18.1.
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.
Brown, J. and Schultheis, C.J., concur.