MARK v. RICHARD, 30978-5-II (Wash.App. 2-8-2005)

No. 30978-5-IIThe Court of Appeals of Washington, Division Two.
Filed: February 8, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Thurston County. Docket No: 02-2-01895-2. Judgment or order under review. Date filed: 09/26/2003. Judge signing: Hon. Richard D Hicks.

Counsel for Appellant(s), Jack W. Jr Hanemann, Attorney at Law, 2120 State Ave NE Ste 101, Olympia, WA 98506-6515.

Counsel for Respondent(s), Mary Gail Carver, The Law Offices of Lawrence E Nelson, 102 N Meridian, PO Box 217, Puyallup, WA 98371-0023.

QUINN-BRINTNALL, C.J.

Clarence and Eva Brown own property adjacent to property owned by Richard and Jonnita Thompson. A road runs along the border. The road is mostly on the Browns’ side, but it encroaches about 10 feet onto the Thompsons’ property at one point. Also on the Thompsons’ property is a rockery and landscaped area that the Browns maintained for some time before the Thompsons purchased their property in January 2001. After a series of disputes, the Thompsons filed an action in small claims court against the Browns and another couple, Mark and Roxanne Knox, for cutting a fir tree on the Thompson property. The Knoxes counterclaimed, alleging that the Thompsons were liable for malicious prosecution in naming them as defendants when the Thompsons allegedly knew that it was the Browns, and not the Knoxes, who had cut down the tree. While the small claims action was ongoing, the Browns filed a quiet title action in superior court, alleging that they had obtained title to the road encroachment, rockery, and landscaped property by adverse possession. The Knoxes, also plaintiffs in the quiet title suit, again alleged that the Thompsons were liable for malicious prosecution due to the small claims action. During the pendency of the quiet title action, the small claims court dismissed the claims before it without prejudice.

The superior court awarded the Thompsons $2,820 for the lost fir tree but denied the Browns’ quiet title action and the Knoxes’ malicious prosecution claim. It found that the Browns had not possessed the Thompson property at issue for 10 years and that the Knoxes had agreed in the small claims case to dismiss their claim if the Thompsons did likewise, thereby estopping the Knoxes from bringing their malicious prosecution claim in superior court. We affirm but vacate that part of the judgment holding the Knoxes liable for the fir tree award.

FACTS
In March 1992, the Browns began living on property that they had owned since 1979. At that time, the Browns’ property was north of property owned by the Jensens, with a gravel trail dividing the two parcels. In 2000, the Knoxes purchased the property east of the Jensens.

The Browns and Jensens had a `friendly, neighborly relationship.’ Clerk’s Papers (CP) at 133. Sometime in the spring of 1992, the Browns began maintaining a rockery on the Jensen property, which the Jensens had stopped tending. In the summer of 1992, the Browns also began landscaping a portion of the Jensen property next to the rockery. The rockery and landscaping ran alongside the Brown-Jensen border.

Over the years, the trail between the two properties has been improved. In late March through April of 1992, the Browns hired a contractor to turn the trail into an access road. The road `roughly followed the location’ of the trail. CP at 132. In 1995, the road was extended east to provide easy access to what would be the Knox property.

In November 1994, the Jensens hired Butler Surveying to complete survey work in anticipation of subdividing their property. Butler Surveying completed a boundary line adjustment in 1994 and a short plat map in November 1995, both of which were filed with the county auditor. Neither of these documents, or field notes taken during the surveying work, indicated the presence of an encroachment on the Jensen property.

The Thompsons purchased the Jensen property in January 2001. In February of that same year, the Thompsons cut down a tree in the rockery because it was on their property and they found it to be an eyesore. In July 2001, Marty Pullen, a nearby property owner, hired Butler Surveying to locate his property lines. As part of this work, Butler Surveying revealed the northwest and northeast corners of the Thompson property. When the surveyor staked these corners, the Thompsons discovered that a short curve in the access road encroached onto their property by approximately 10 feet.

On March 2, 2002, the Thompsons began erecting a fence along the western and northern boundary of their property. Throughout March and May, the Browns repeatedly removed or sawed off the wooden fence posts which the Thompsons would install. The Thompsons continually replaced the posts, eventually using metal posts and cement. At some point, the Thompsons discovered that the stake marking the northeast corner of their property had been covered with a large pile of manure. The Thompsons replaced that stake with a 15-foot tall pole. Like the posts, the Thompsons were forced to continually reinstall the pole because they would find it removed or knocked over. During the spring and summer of 2002, the Thompsons removed several trees from the rockery and bulldozed the landscaped area. At some point during the spring, the Browns cut down a fir tree on the Thompson property. In October 2002, the Thompsons had Butler Surveying stake the entire northern boundary of their property. The Thompsons then planted approximately 80 shrubs along the border which they would later find to have been mowed over and destroyed. On October 26, 2002, the Thompsons used a tractor to excavate the portion of the access road that encroached onto their property.

The Thompsons filed suit in small claims court against the Browns and Knoxes on May 28, 2002. The basis for the suit was the fir tree the Browns had cut down. The Thompsons dismissed the suit without prejudice when the small claims court dismissed the Knoxes as a party and the Browns failed to appear. The Thompsons refiled the suit, but this time the Knoxes filed a counterclaim for malicious prosecution, seeking $800 in lost wages as a result of having to defend the action. On February 13, 2003, the small claims court dismissed the suit, including the Knoxes’ counterclaim which they agreed to drop to be `neighborly.’ 3 Report of Proceedings (RP) at 403.

While the second small claims case was pending, the Browns and Knoxes filed a quiet title action in superior court on October 29, 2002. The Browns alleged that they had obtained title to the road encroachment, rockery, and landscaped property by adverse possession. The Knoxes again sought malicious prosecution damages for being named as defendants in the small claims action. After a four-day trial, the trial court denied both claims. The trial court concluded that the Browns had not shown that their possession of the property at issue was open and hostile for 10 years. As to the Knoxes, the trial court concluded that they were estopped from bringing a malicious prosecution claim because, as it found, they had agreed to dismiss their malicious prosecution claim in the small claims action in exchange for dismissing them as a party. In addition, the trial court found that the Browns and Knoxes were jointly liable for $2,820, the value of the fir tree that had been cut down.

This appeal followed.

ANALYSIS The Browns’ Adverse Possession Claim
In this appeal, the Browns contend that the trial court erred in concluding that they had not obtained title to the road encroachment, rockery, and landscaped property by adverse possession.[1] A party seeking to obtain title to property by adverse possession has the burden of proving that his possession of the property is (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, (4) hostile, and (5) continuous for the statutorily prescribed period of 10 years. RCW 4.16.020; ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6
(1989).

The Browns first assert that the trial court erred in finding that the road encroachment did not exist prior to 1995. But we do not reach this issue as it is clear that the Browns failed to establish that their possession was actual, uninterrupted, and exclusive for the prescribed period of 10 years.[2] The Thompsons purchased their property in January 2001 and began asserting their ownership rights at that time. The Browns had only been living on their property since March 1992, less than nine years, and, thus, the ten-year period could not have run. Therefore, we affirm the trial court’s decision that the Browns failed to prove their adverse possession claim, albeit on different grounds. Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986) (appellate court may affirm on any ground supported in the record).

The running of the prescribed period of 10 years is tolled by the owner’s `entry upon the land where accompanied by an explicit declaration of his purpose to repossess himself thereof, or by such open and notorious acts of dominion as make that purpose manifest.’ Wade R. Habeeb, Annotation, Owner’s Surveying of Land as Entry Thereon Tolling Running of Statute of Limitations for Purposes of Adverse Possession, 76 A.L.R. 3d 1202, 1203 (1977). Richard Thompson testified that he purchased the property in January 2001 and that it was his intent to protect his property lines. The record shows that Richard Thompson manifested this intent when, a month after purchasing the property, he cut down a tree in the rockery which he considered unsightly. And in July 2001, when a neighbor’s survey revealed that a short curve in the Browns’ road encroached onto the Thompson property by approximately 10 feet, the Thompsons asserted their right to this property by erecting a fence in early March 2002. See Bell, 112 Wn.2d at 759 (`A fence is the usual means relied upon to exclude strangers and establish the dominion and control characteristic of ownership.’) (quoting Wood v. Nelson, 57 Wn.2d 539, 540, 358 P.2d 312 (1961)). Ten years had not yet passed since April 3, 1992, when the Browns claim the road encroachment first existed.

In addition, the Thompsons’ fence tolled the statutory period as to the landscaped property, which the Browns did not begin maintaining until the summer of 1992.[3] And the Thompsons’ tree cutting in February 2001 tolled the statutory period for the rockery. The record before us does not establish that the Browns adversely possessed the disputed property for the required uninterrupted 10-year period. Thus, the trial court did not err in rejecting the Browns’ request to quiet title to the property in them.[4] Knoxes’ Malicious Prosecution Claim

Turning now to the Knoxes’ malicious prosecution claim, the trial court erred in summarily dismissing this action. The trial court concluded that the Knoxes were barred from bringing this suit in superior court because they had `agreed at the Small Claims court to dismiss their claim in exchange for [the] Thompsons agreeing to dismiss their claim.’ CP at 142. But there is no evidence in the record before us to support this finding. The Knoxes testified that they dismissed their counterclaim to be `neighborly’ and because the judge had asked them to do so. Richard Thompson did not testify that the decision to dismiss the Knoxes was conditioned on them dismissing their counterclaim. The only testimony that Richard Thompson provided was that the judge had made the decision to dismiss the Knoxes. In addition, the small claims court judgment form dismissing the case contained a `by agreement’ box that was not marked. Ex. 22.

More importantly, the Knoxes filed their complaint in superior court on October 29, 2002. The order dismissing the Knoxes in the small claims case was not filed until February 13, 2003. This is not a case where the Knoxes agreed to drop their suit, only to subsequently file it in a different court to the surprise of the Thompsons. We also note that the trial court concluded that the Knoxes were precluded from raising their small claims court claim, but it allowed the Thompsons to continue their action for the fir tree that the Browns had cut down.

But we do not remand for further proceedings as the Knoxes failed to set forth a prima facie case of malicious prosecution. One of the elements of a malicious prosecution action is special damages that would not have been incurred but for the institution of the legal action at issue. Gem Trading Co. v. Cudahy Corp., 92 Wn.2d 956, 965, 603 P.2d 828 (1979); Loeffelholz v. Citizens for Leaders with Ethics Accountability Now (C.L.E.A.N.), 119 Wn. App. 665, 695, 82 P.3d 1199, review denied, 152 Wn.2d 1023
(2004). Rick Thompson testified that he named the Knoxes as defendants because he wanted them to testify. By his account, an account which the Knoxes do not dispute, the Knoxes were his primary witnesses because they had helped the Browns clean up the debris after the fir tree was cut down. Although it is entirely improper to name an individual as a defendant merely to secure their presence at trial, the Knoxes have failed to establish a basis for an award of damages resulting from such action. They would have lost the same wages if they had been subpoenaed as witnesses.[5]

Albeit for different reasons, we affirm the trial court’s ruling denying the Browns’ adverse possession claims and dismissing the Knoxes’ malicious prosecution action. Because the Browns’ appellate counsel conceded during oral argument that it was the Browns, and not the Knoxes, who should be liable for the $2,820 fir tree award, we vacate that part of the order holding the Knoxes liable.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

MORGAN, J. and HOUGHTON, J., Concur.