Nos. 55842-1-I; 56240-1-I.The Court of Appeals of Washington, Division One.
July 9, 2007.
Appeals from a judgment of the Superior Court for Snohomish County, No. 04-2-08016-7, David F. Hulbert, J., entered February 4, 2005.
Affirmed in part, reversed in part, and remanded with instructions by unpublished opinion per Ellington, J., concurred in by Agid and Dwyer, JJ.
ELLINGTON, J.
In this boundary line dispute, the trial court resolved an ambiguous legal description and rejected equitable theories for adjusting it. The court also rejected a claim of assault. The evidence is sufficient to support the determination of the boundary line, but the findings on counterclaims of adverse possession, mutual acquiescence and assault are inadequate for purposes of review, and we remand for new findings on those three claims. Finally, the trial court did not abuse its discretion in denying CR 11 sanctions nor err in refusing to disqualify counsel for one of the parties.
BACKGROUND
Fred Howard owned two adjacent lots, 9 and 10. Howard’s house, straddling the boundary between the lots, encroached onto lot 9. In 1966, Howard planned to divide and sell both lots. He hired L. F. McCurdy to survey them and draft new legal descriptions that would eliminate the encroachment. McCurdy referred to both distance calls and compass bearings in the descriptions to delineate a new boundary line between the lots:
Exhibit 1. On his survey, McCurdy noted that the northeast corner of Howard’s house was 7.5 feet west of the new boundary line.
Shortly after McCurdy’s survey, Larry and Kaaren Reinertsen purchased Howard’s house and the western lot, X. Ownership of lot Y transferred several times until 1976, when it was purchased by Carolyn Rygg and her husband. Their marriage subsequently dissolved, and Rygg now lives on lot Y with her son, Craig Dilworth.
In late 2002 or early 2003, the Reinertsens began building a deck on the eastern side of their house. Rygg and Dilworth believed the deck extended onto their property. The Reinertsens disagreed, but made a small adjustment to the design of the deck at their neighbors’ request. Rygg and Dilworth believed the revised deck still encroached onto their property, and, as construction continued, animosity between the parties escalated. Larry Reinertsen and Dilworth had at least two confrontations, one in October 2003 and the second in February 2004. Dilworth alleges that on the second occasion, Larry Reinertsen assaulted him. Reinertsen testified that on both occasions he and Dilworth were waving their arms around, and that during the second encounter, he accidentally knocked Dilworth’s glasses off.
In March 2004, the Reinertsens filed this action to quiet title to the property based on its legal description. The legal description is problematic, however, because measuring from the distance calls creates a different boundary line from that created by measuring from the compass bearings. Rygg counterclaimed, alleging that she adversely possessed or the parties mutually acquiesced to a boundary line created by a row of pyramidalis trees, a board fence, and a split rail fence. This line lies slightly to the west of the boundary created by the legal description, whether measured according to the distance calls or the compass bearings. Dilworth filed a counterclaim for assault.
The trial court ruled that the distance calls control the boundary, and found against Rygg and Dilworth on all of their counterclaims. Rygg and Dilworth appeal. They contend the court’s findings are inadequate for purposes of review and are not supported by the evidence, and that the court’s judgment is uncertain.[1]
ANALYSIS Boundary Dispute
When a case is tried without a jury, CR 52(a)(1) requires the judge to “find the facts specially and state separately its conclusions of law.” The findings and conclusions must be “sufficient to suggest the factual basis for the ultimate conclusions.” In re Marriage of Lawrence, 105 Wn. App. 683, 686, 20 P.3d 972 (2001).
Substantial evidence is that which persuades a fair-minded person of the truth of the declared premise. Hensel v. Dep’t of Fisheries, 82 Wn. App. 521, 526, 919 P.2d 102 (1996). The trial court may reject or accept expert testimony in whole or in part according to its judgment of the testimony’s persuasiveness. In re Marriage of Pilant, 42 Wn. App. 173, 179, 709 P.2d 1241 (1985). The burden is on the challenging party to show a finding of fact is not supported by substantial evidence. Standing Rock Homeowners Ass’n v. Misich, 106 Wn. App. 231, 243, 23 P.3d 520 (2001).
The fundamental question in resolving an ambiguous boundary description is the grantor’s intent. Thompson v. Schlittenhart, 47 Wn. App. 209, 212, 734 P.2d 48 (1987). Here, the court found that “[w]ith respect to any inconsistencies in that deed based upon the distances stated therein versus the compass bearings, . . . the Grantor’s intent was more probably based upon the distances[,] and . . . the distances stated in such legal description control over the compass bearing where a discrepancy exists.” Clerk’s Papers at 454-55. This finding expressly determines the fundamental issue, and on this record is adequate to satisfy CR 52 and permit review.
The finding is supported by substantial evidence. The parties presented three options for determining Howard’s intent as to the boundary: (1) the distance calls in the legal description and on McCurdy’s survey, (2) the compass bearings in the legal description and on McCurdy’s survey, or (3) the 7.5 foot measurement between the house foundation and the boundary, noted solely on McCurdy’s survey.
The Reinertsens’ surveyor, David Downing, testified that in his first survey he relied upon the distance calls over the compass bearings, because distance is easier to measure and compass bearings taken in the 1960s tended to be inaccurate. He therefore believed the distance measurement most likely represented the grantor’s intent. Once he learned of McCurdy’s survey map and studied it, however, Downing concluded that the measurement taken from the foundation to the property line most accurately represented the grantor’s intent. He testified that if the house foundation had been moved since McCurdy’s survey, uncertainty would return, and he would again rely upon the distance calls over the compass bearings. Larry Reinertsen testified that he replaced the foundation without changing its location shortly after he bought the house.
Rygg’s surveyor, Jerome Krell, testified that the measurement from the foundation should not control and that the bearing measurements most accurately represented Howard’s intent. According to Krell, Howard most likely intended for the boundary to go in a specific direction and intersect the west line of lot 10 at whatever distance happened to arise.
The court was thus presented with expert testimony and written documents supporting all three approaches. The court apparently determined the grantor’s intent based upon the legal description, which did not mention the measurement between the house foundation and the boundary, and upon Downing’s testimony that distance calls were more reliable measurements than compass bearings. There was a reasonable basis in the evidence for this finding.
Rygg next contends the court’s judgment is uncertain because no order included a legal description of the property line. But the written findings state that the Reinertsens “established legal title to their property by virtue of the legal description contained in their deed” and that any inconsistencies in the description were resolved in favor of the distance calls. Clerk’s Papers at 454. Although perhaps not self-executing, the court’s judgment is sufficiently certain to fix the location of the boundary. See Samples v. Kergan, 109 Wash. 503, 187 P. 383
(1920) (judgment delineating boundary by fence line was sufficiently certain).
Counterclaims
Rygg and Dilworth contend the findings of fact rejecting their counterclaims of adverse possession, mutual acquiescence, and assault are insufficient to provide meaningful appellate review.[2] We agree.
The trial court made a single finding on the adverse possession and mutual acquiescence claims: “[W]ith respect to the various equitable claims, including but not limited to adverse possession and mutual recognition acquiescence, put forward by the Defendants, that they have failed to meet their burden with respect to such claims and the same should therefore be denied.” Clerk’s Papers at 455.
This finding does not reflect the evidence or theories presented by the parties and is insufficient for meaningful appellate review. For purposes of trial, the parties divided the boundary line into three sections: the line designated by pyramidalis shrubs, a board fence, and a split rail fence. The board fence created the western edge of an enclosure abutting Rygg’s garage, and Rygg had stored firewood in the enclosure for many years. Larry Reinertsen did not dispute that Rygg used the area; instead, he presented a defense of permission. In an adverse possession claim, the burden is on the true owners to show that use was permissive. Hovila v. Bartek, 48 Wn.2d 238, 241, 292 P.2d 877 (1956) (proof that use of another’s land has been open, notorious, continuous, and uninterrupted for the required time creates a presumption that the use was adverse; burden is on the true owner to show use was permissive). But according to the court’s finding, the party failing to meet its burden was Rygg, not the Reinertsens. Ordinarily, absence of a finding in favor of a party’s position is in effect a finding against that party. Wallace Real Estate Inv. v. Groves, 72 Wn. App. 759, 773 n. 9, 868 P.2d 149 (1994). But here, substantial evidence supports a finding that Rygg adversely possessed the enclosed area up to the board fence, and the finding does not acknowledge that the burden of proof shifted to the Reinertsens to show permission.
In addition, evidence that the parties regarded the line represented by a collapsed portion of the split rail fence as a boundary tended to support Rygg’s mutual acquiescence theory. The court did not explain why the theory failed for that section — whether because the line was not well-defined, or because the parties failed to mutually recognize and accept the line as the true boundary, or for some other reason. We are thus unable to review the record to ascertain its sufficiency on this issue.
Further, we cannot tell whether the court considered theories of mutual acquiescence and adverse possession for each section of the boundary line, and, if so, why it rejected them. In short, the court’s sole finding is inadequate to suggest the factual basis for the court’s conclusions.
The finding regarding assault suffers the same inadequacy. Assault is an intentional act causing a person to have a reasonable fear of battery. McKinney v. City of Tukwila, 103 Wn. App. 391, 408, 13 P.3d 631 (2000); Restatement (Second) of Torts §§ 27 (1965). The defendant must have a present and apparent ability to carry out the threatened harm. W. Page Keeton, et al, Prosser and keeton on the law of torts §§ 10 (5th ed. 1984).
The trial court found:
[T]he claim of Defendant Dilworth for assault is not well founded and should be denied. To the extent that there was any physical altercation between Defendant Dilworth and Plaintiff Reinertsen, the actions of said Defendant were at least as provocative as those of the Plaintiff and the facts presented equally support a situation of mutual combat or Defendant taking action that might have incited the Plaintiffs’ response.Clerk’s Papers at 455.
Mutual combat and provocation are irrelevant to a claim of civil assault. Washington has expressly refused to adopt the rule that parties engaged in mutual combat will be denied relief in a civil action. Hart v. Geysel, 159 Wash. 632, 635, 294 P. 570 (1930). The finding does not address the facts relevant to the elements of assault.
The frailties in the court’s findings preclude effective review on the counterclaims. We must remand for entry of findings addressing the facts and theories presented at trial. In the interim, we vacate the order quieting title in the Reinertsens.
CR 11 Sanctions, Disqualification of Counsel
Both parties sought CR 11 sanctions, which the trial court denied. A grant or denial of sanctions is reviewed for abuse of discretion. Skilcraft Fiberglass v. Boeing Co., 72 Wn. App. 40, 44, 863 P.2d 573
(1993). A trial court abuses its discretion when its decision or order is manifestly unreasonable, or when discretion is based on untenable grounds or untenable reasons. State v. Brown, 132 Wn.2d 529, 572-73, 940 P.2d 546
(1997).
Rygg argues that Reinertsens’ counsel should be sanctioned for mischaracterizing testimony and misstating the law of adverse possession. A review of the record shows that counsel’s arguments were within the evidence. Though counsel misstated the definition of hostility for purposes of adverse possession, the error was not relevant to the parties’ contentions and was corrected by Rygg’s counsel before the court ruled. The court did not abuse its discretion in denying sanctions.
Rygg also contends the court erred by refusing to grant her motion to disqualify counsel for the Reinertsens.[3] Whether to grant a motion to disqualify counsel is a question of law we review de novo. Eriks v. Denver, 118 Wn.2d 451, 457-58, 824 P.2d 1207 (1992). Under former Rule of Professional Conduct (RPC) 1.9 (2005), a lawyer may not represent another person in the same or a substantially related matter if that person’s interests are materially adverse to the interests of a former client.[4]
Matters are substantially related when the factual matter in the former representation is so similar to a material factual matter in the current representation that a lawyer would consider the past representation useful in advancing the interests of the current client. State v. Hunsaker, 74 Wn. App. 38, 44, 873 P.2d 540 (1994). When a lawyer is disqualified from representation, then all members of the lawyer’s firm are likewise disqualified. Former RPC 1.10. A lawyer that is not disqualified may not use confidences or secrets relating to the former representation to the former client’s disadvantage. Former RPC 1.9.
After trial concluded, but before judgment was entered, Reinertsens’ counsel joined the firm that had represented Rygg in her dissolution 10 years earlier. The trial court held a hearing on Rygg’s motion to disqualify him, and ruled that the boundary dispute and the dissolution matters were not substantially related. We agree. The division of marital property was an issue in the dissolution, but the lot boundary was not. The fact that the same piece of real property was before the court does not make the matters substantially related.
Rygg also contends that a response to her motion for reconsideration shows that Reinertsens’ counsel impermissibly used confidential information about her obtained from his new firm. Specifically, counsel alluded to Dilworth’s “martial arts expertise.” Clerk’s Papers at 28. Rygg alleges the record contains no evidence of her son’s martial arts experience, and that this reference shows that counsel obtained confidential information about her from the firm’s dissolution file or from her dissolution attorney. Reinertsens’ counsel denied obtaining information about Rygg from his new firm, and claimed he found the information in his trial notes. The trial court resolved this dispute against Rygg.
Dilworth’s martial arts experience is not a confidence or a secret related to the dissolution, and regardless how counsel obtained the information, he did not use it to Rygg’s disadvantage. The Reinertsens did not claim self-defense, and therefore information about Dilworth’s martial arts skills is not relevant to whether Larry Reinertsen assaulted him. The trial court did not err by refusing to disqualify opposing counsel or his law firm.
We affirm the trial court’s resolution of the boundary line, its denial of CR 11 sanctions, and its refusal to disqualify the Reinertsens’ trial counsel. We remand for entry of new findings on Rygg’s counterclaims of adverse possession, mutual acquiescence, and assault. In the interim, we vacate the order quieting title in the Reinertsens.
Affirmed in part, vacated in part, and remanded with instructions.