WILLIAMS v. ZACCHEO, 20327-1-III (Wash.App. 2-11-2003)

No. 20327-1-III.The Court of Appeals of Washington, Division Three. Panel Three.
Filed: February 11, 2003. UNPUBLISHED OPINION

Appeal from Superior Court of Pend Oreille County Docket No: 97-2-00133-8 Judgment or order under review Date filed: 06/14/2001.

Counsel for Appellant(s), Douglas J. Edwards, Attorney at Law, 1403 S Grand Blvd Ste 201s, Spokane, WA 99203-2278.

Counsel for Respondent(s), James Francis Olson, Attorney at Law, 8414 N Wall St. Ste a, Spokane, WA 99208-6171.

SCHULTHEIS, J.

A jury trial was held in an attempt to quiet title on a portion of land bordering the properties of Byron and Debra Williams and Ronald and Joel Zaccheo.[1] At the conclusion of the trial, the jury found the disputed property rightfully belonged to the Zaccheos. Further, it determined the Williamses’ actions caused the Zaccheos’ emotional distress and awarded damages to them. The Williamses immediately filed a motion for judgment as a matter of law, claiming the evidence did not support the jury’s decisions. Their motion was denied and the court entered judgment against the Williamses. The Williamses appeal both decisions. Finding no error, we affirm.

Facts
The Williams family and the Zaccheo family own adjacent properties with common east/west and north/south borders in Pend Oreille County. The Williams family owns two parcels of property that border the Zaccheos’ 10-acre parcel. One piece of the Williamses’ property was called the upper-60 acres for purposes of litigation. The upper-60 acres’ southern border is adjacent to the northern border of the Zaccheos’ property. The other piece of property owned by the Williams family was a 4.5-acre parcel that shared a common east/west border with the Zaccheos’ property. The Zaccheo family purchased their property in 1991 and the Williams family purchased theirs in 1997. Both families have homes on their property.

Mr. Zaccheo is a Vietnam veteran and suffers from posttraumatic stress disorder (PTSD). He and his wife purchased their 10-acre parcel of land in Pend Oreille County because life in Spokane was too stressful for him. He needed the peace and solitude of the woods in order to control his depression and the symptoms of PTSD. Although the Zaccheos purchased their land in 1991, the hunting cabin located on it did not become habitable until after several years of hard work went into updating it.

The Zaccheo and Williams families first met in 1996. In the first few months the families were on cordial terms and the men shared stories of their military experiences. Beginning in July 1997, the relationship deteriorated drastically. Since that time, police officers have often been called to the properties in order to resolve disputes. Particularly disturbing to the Zaccheos was an incident involving fireworks being set off on or around July 4, 1997. Not only were the Zaccheos angry that the actions could cause Mr. Zaccheo to suffer from a flashback, but the land was dry and the Zaccheos feared a fire could destroy both properties.

Although the testimony conflicted, Mr. and Ms. Zaccheo each testified the Williams family members knew of Mr. Zaccheo’s PTSD and that firecrackers and/or gunfire could trigger PTSD symptoms. This information was corroborated by Ms. Williams’s sister-in-law. On at least two occasions, Mr. Williams admitted he knew Mr. Zaccheo was a Vietnam veteran who occasionally suffered from flashbacks. At other times he denied having such knowledge.

Other incidents of yelling, cussing, vandalism, and trespass evolved.

The Zaccheos locked a gate on their property that the Williams family used to access a portion of their property even though another access road existed. The boundary lines between the Williamses’ and Zaccheos’ properties became hotly disputed. The Williamses filed a lawsuit for injunctive relief in July 1997 in an attempt to force the Zaccheos to unlock the gate in order to utilize an easement the Williams family had on a road (the Loop Road) that crossed the Zaccheo property and allowed access from the lower 4.5 acres to the upper-60 acres. In response, the Zaccheos had a professional surveyor determine the actual boundary lines between the two properties. Because the survey lines did not match up with what the Zaccheos knew as their boundary lines, they filed a counterclaim against the Williamses for adverse possession to a portion of land on the eastern border of the Williamses’ land. The counterclaim was later amended to include a claim of adverse possession to a portion of the Williamses’ upper-60 acres north of the Zaccheos’ surveyed northern border. Once the Williams family had a chance to study the professional survey, they also amended their complaint to include a claim of adverse possession to a portion of the Zaccheos’ property along the north/south shared border.

A week long trial commenced in the Pend Oreille County Superior Court in April-May 2001. Both sides presented emotional and conflicting evidence regarding the boundaries between the properties as well as the cause of Mr. and Ms. Zaccheo’s emotional distress. At the close of testimony the Williamses made a motion to dismiss the Zaccheos’ claims for adverse possession based on a complete lack of proof of exclusivity. Speaking of the heavily forested nature of the disputed properties, the court admitted the exclusivity element of adverse possession was difficult to prove in `these kinds of uncharted lands, so to speak.’[2]
Nevertheless, it initially denied the motion without prejudice, finding it preferable to allow the jury to make the decisions. The court invited either party to make a motion for judgment as a matter of law after the verdict was reached if they were dissatisfied with the result. Later the court reconsidered its decision regarding the Zaccheos’ claim of adverse possession north of the surveyed northern boundary line on their property and determined:

[I]n all intellectual honesty there is no way I can avoid dismissing that claim under the evidence. There is no evidence at all of prior ownership, or prior possession, beyond the Zaccheos’ own possession of it. They have no direct knowledge of the possession. There’s no circumstantial evidence of that, and there is therefore no way that the court could rule — there’s no way that the jury could legally make a finding on that claim.[3]

As a result, the Zaccheos’ claim for adverse possession to the Williamses’ property north of the Zaccheos’ surveyed northern boundary was dismissed.

At the conclusion of the trial, the jury determined the Zaccheos had successfully established a claim for adverse possession to the Williamses’ property west of the surveyed western border of the Zaccheos’ property.

The jury also awarded the Zaccheos $8,780 as damages for trespass by the Williams family. It also awarded the Zaccheos $20,000 on their claim for negligent infliction of emotional distress. The Williamses’ claim for adverse possession to the Zaccheos northern property was denied by the jury.

Upon hearing the jury verdicts, the Williams family immediately made a motion for judgment as a matter of law. The motion was later denied after the court reviewed briefing on the matter. Judgment was entered against the Williams family and this timely notice of appeal of both orders was filed by the Williams family.

Analysis 1. Judgment as a Matter of Law
We are first asked to determine whether the trial court erred when it denied the Williamses’ motion for judgment as a matter of law. It is appropriate to grant such a motion only when, viewing the evidence most favorably to the nonmoving party, the court can say as a matter of law that there is no substantial evidence or reasonable inference to sustain the verdict for the nonmoving party. Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997). Substantial evidence is that which is sufficient to persuade a fair-minded, rational person of the truth of the declared premise. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313
(1994).

The Williamses contend the jury instruction regarding adverse possession did not correctly state the law. However, no objection to the jury instructions was made at trial. To preserve an error for appeal, a timely objection must be made; otherwise a party waives his or her right to challenge the alleged error. State v. Leavitt, 49 Wn. App. 348, 357, 743 P.2d 270 (1987), aff’d, 111 Wn.2d 66, 758 P.2d 982 (1988). As a result, we decline to address this issue.

The Williamses next claim the evidence was sufficient to support their claim for adverse possession or recognition and acquiescence in a common boundary line regarding the northern portion of the Zaccheos’ property as surveyed. They are mistaken. The evidence presented was conflicting at best. It is true the Williamses presented witnesses who testified regarding their belief the Zaccheos’ northern boundary was south of the surveyed line. However, the McCombs family, the Williamses predecessors in interest, also testified that they had completely logged their property prior to the Williamses’ purchase of the acreage. Evidence was presented through aerial photographs that showed no logging had occurred on the disputed parcel located on the Zaccheos’ property for decades. The Zaccheos assert this is evidence the former and current landowners knew the disputed parcel did not belong to them. The bottom line here is that the jury was left to make a credibility determination with which this court may not interfere. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996).

Finally, the Williamses claim their motion for judgment as a matter of law was improperly denied because the evidence does not support the jury’s determination that the Zaccheos had established a claim of adverse possession to the disputed property west of their surveyed western border.

We disagree. To establish adverse possession, the Zaccheos had to show use that was open, notorious, continuous, uninterrupted, and adverse to the property owner for the prescriptive period of 10 years. RCW 7.28.010; ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989).

At trial, the Zaccheos presented several witnesses who claimed the western border of the Zaccheos’ property was west of the western loop of the Loop Road. Various witnesses testified the western border was marked by a barbed wire fence hung with colored flags. Testimony revealed that the barbed wire fence line is so old it has now grown into the bark of the trees lining the area. The Williamses seem to agree that exclusive possession was proven for the six years the Zaccheos owned their 10 acres but do not believe the exclusive possession was proven for the other consecutive four years. Again, we disagree. The Holloways, the Zaccheos’ immediate predecessor in interest, testified that the western boundary was lined with a barbed wire fence. A barbed wire fence that is so old it has grown into the bark of the surrounding trees supports an inference that the fence has been in place for a long time.

Because the testimony was disputed and the facts support either side’s theory of the case, the jury had to decide which witnesses were more credible. The motion for judgment as a matter of law was made by the Williams family. As a result, when we review the facts, admitting the truth of the Zaccheos’ evidence as well as all reasonable inferences that can be drawn from that evidence, it cannot be said, as a matter of law, that the evidence was not sufficient to sustain the verdict in favor of the Zaccheos. Because the evidence supports the jury’s decision regarding adverse possession and the Zaccheos presented sufficient evidence of the cost to replace the timber illegally harvested off their property, the trial court properly denied the Williamses’ motion for judgment as a matter of law.

2. Negligent Infliction of Emotional Distress
Next, we are asked to determine whether the trial court erred when it entered judgment against the Williamses on the Zaccheos’ claim for negligent infliction of emotional distress (NIED). There was no error.

The Williamses attempt to simplify the cause of the Zaccheos’ claims of emotional distress. The NIED claim was based on much more than an isolated incident of fireworks or leaving the gate to the Zaccheos’ property open a few times. As noted above, Mr. Zaccheo is a Vietnam veteran who has been diagnosed with PTSD. Testimony revealed that to remain emotionally healthy and free from the debilitating symptoms of PTSD, Mr. Zaccheo had a need to feel safe and secure in his surroundings. That was the Zaccheos’ stated purpose for purchasing the heavily forested land in a relatively remote area of the county. Although Mr. Williams testified otherwise, several people testified that he was aware of Mr. Zaccheo’s PTSD and that fireworks and gunfire were particularly difficult for Mr. Zaccheo to handle. The fireworks incident apparently set off a series of events that seemed to escalate until the time of trial.

The record contains sufficient evidence that the Zaccheos were tormented by the actions of the Williams family. The Zaccheos presented evidence of increased medical visits, increased need for medication, and even a hospitalization as the direct result of the fear and intimidation they felt as a result of the Williamses’ actions. The Williamses claim the Zaccheos are not sociable people and just do not fit in with the neighbors. This is not supported by the evidence. In fact, the opposite is true when one reads the entire record. Cathy Stanley, the Williamses’ sister-in-law, testified that she heard Ms. Williams say she was going to do things to purposely set Mr. Zaccheo off. Ms. Zaccheo testified she and her husband could not use their patio or deck because if they went outside, someone from the Williams family would invariably gather below and stare, cuss, yell, and/or make obscene gestures at the Zaccheos. When the Zaccheos hung a drop cloth to block the Williamses’ view of the Zaccheos’ patio, the Williams family would ride four wheel drive vehicles up and down the road in front of the Zaccheos’ property. The threats by the Williams family members were so believable and so constant that the Zaccheos would not leave their property unless someone they trusted would watch the property for them.

The jury was given several, detailed instructions related to the Zaccheos’ NIED claims, including the legally sufficient means of measuring damages. We determine there was substantial evidence in the form of testimony, photographs, and videotape to allow the jury to reach the decision it did. The jury set forth the formula it followed in making its award of damages based on a finding of NIED against the Williamses. The evidence supports the jury’s verdict and the trial court did not err when it entered judgment against the Williams family.

Affirmed.

A majority of the panel has determined that 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, C.J. and SWEENEY, J., concur.