Opinion
No. 35881-6-II.
January 23, 2008.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 04-2-01917-7, James E. Warme, J., entered January 9, 2007.
Reversed and remanded by unpublished opinion per Van Deren, A.C.J., concurred and Penoyar, JJ.
Robert Vitous appeals the trial court's judgment quieting title to a disputed portion of his property in favor of Thomas and Jody Harper. Vitous argues that the trial court's ruling was not equitable or supported by sufficient evidence because (1) the Harpers did not establish all elements of estoppel in pais and (2) the parties did not enter into an express boundary agreement. We agree with both contentions and, thus, reverse and remand to the trial court to enter an order quieting title to the disputed property in Vitous.
FACTS
I. Southern Boundary Location
Robert Vitous was born in 1934 and has lived on 20 acres of his parents' property in Cowlitz County for most of his life. Before World War II, a fence divided his parents' property from the southern neighbor. The "Columbus Day Storm," of October 12, 1962, "obliterated" the southern fence, Report of Proceedings (RP) at 24; so since 1962, Vitous tried to keep a fire break between his parents' property and the southern neighbor by mowing down brush and taking "out any dead trees that may be a hazard." RP at 27. Vitous mowed a six to eight-foot strip between the properties once or twice a year. He installed plastic white posts so that he could find where to mow in the brush.
Vitous testified that he put the white posts in to guide his mowing, not to mark the boundary line.
In 1993 and 1994, developers built the Cedar Falls subdivision along Vitous's southern border. They built the last phase in 1996. On April 29, 1998, Jody Harper purchased lot 42 in phase 3 of the development. When she purchased the property, the builder told her that "the property goes out so far," but he did not show her the exact boundary lines. RP at 90. Jody Harper installed a lawn and extended her gardens past the white posts that Vitous previously installed.
The record does not indicate what company developed the Cedar Falls subdivision.
Jody Harper was known as Jody Moulton when she purchased lot 42. On July 21, 2003, Jody Harper added Thomas Harper's name to her property's deed.
In the summer of 1998, Vitous realized that the Harpers' garden encroached onto his property. He posted a "Keep Out" sign in the Harpers' garden on a white post that he had installed as a brush mowing marker. RP at 34. The Harpers' garden extended past this "Keep Out" sign. RP at 139.
Vitous testified that this "Keep Out" sign is no longer in the Harpers' garden; but he does not know what happened to it. RP at 64. He also testified that the white posts he installed for mowing have been removed; Vitous does not know who removed the posts.
During this same summer, Vitous spoke to Jody Harper when he was mowing brush. Vitous laid down a single strand of barbed wire and told Jody that he thought it was on the boundary line between the properties. The barbed wire was not straight and it was not attached or secured to anything. The Harpers' garden also extended beyond the barbed wire, onto Vitous's property. Vitous also complained to Thomas Harper that the garden was encroaching on his property. On April 28, 1999, Vitous's mother's estate granted Vitous the 20 acres by quit claim deed.
At trial, Vitous testified that the barbed wire had been on the ground at least four to five years before the subdivisions were developed. He stated that he pointed to the wire and told Jody Harper that he thought it was on the boundary line. He testified that he did not put the wire on the ground on the day of their conversation; that it was already there. Jody Harper testified that Vitous was mowing when the conversation started. He got off the mower and put the piece of barbed wire on the ground. The trial court found that Vitous laid the barbed wire on the ground. Despite Vitous's argument that he did not, we do not disturb the trial court's findings of fact based on conflicting testimony "unless we can say as a matter of law that the evidence preponderates against them." Skov v. MacKenzieRichardson, Inc., 48 Wn.2d 710, 717, 296 P.2d 521 (1956). Thus, we do not disturb the trial court's finding that Vitous placed the barbed wire on the ground.
Neither the date of Vitous's mother's death nor her will is in the record.
Sometime after 1999, Larry Lewis, the owner of lot 56 in the Cedar Falls subdivision, asked Vitous about the location of their mutual boundary so that he could build a fence. Vitous and Lewis agreed on a location where Lewis could construct his fence. In 2001, the Harpers extended the deck behind their house and added a hot tub; and, in 2002, they added a patio and a white picket fence along one side of their property. They spent about $5,000 to improve their backyard.
II. Property Survey
In June 2004, Vitous hired Calvin Hampton, a licensed land surveyor, to survey his property. At the time of the survey, the barbed wire was no lon ger on the property. But Hampton found circle monuments already marking the boundaries of Vitous's property, as well as the corners of the individual lots of the Cedar Falls subdivision.
The survey showed that the Harpers' improvements encroached 25.31 feet onto Vitous's southern boundary, a total of 2,247 square feet of encroachment. It also revealed that the Harpers' hot tub was 4.6 feet over the property line. Until the surveyor informed him, Vitous did not know that the Harpers had installed a hot tub or deck on his property. The Harpers estimated that the barbed wire had once been about 20 to 25 feet from the survey line on Vitous's property.
The survey also showed that Lewis's fence was on Vitous's property; so Vitous paid to move Lewis's fence about five feet because they had previously "reached an agreement" on the boundary line. RP at 47. Also based on the survey, the owner of lot 41, Thomas Paine, removed his improvements from Vitous's property.
III. Complaint to Quiet Title
On October 21, 2004, Vitous filed a complaint to quiet title to the portion of his property encroached upon by the Harpers. The Harpers asserted affirmative defenses of (1) "boundary agreement . . . and acquiescence" and (2) estoppel. Clerk's Papers (CP) at 8.
The trial court found that neither the Harpers nor Vitous were aware of the property boundary lines prior to the survey. It quieted title to the disputed 25 feet of property in favor of the Harpers, based on an express agreement between the Harpers and Vitous establishing the location of the boundary line and further established the line "based upon estoppel in pais." CP at 10.
Vitous appeals.
ANALYSIS
Vitous argues that the trial court's ruling was neither equitable nor supported by sufficient evidence because the Harpers cannot establish the required elements of equitable estoppel or of a parol agreement.
I. Standard of Review
We review a trial court's factual findings to determine whether substantial evidence supports the findings. Ridgeview Props. v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982); Leonard, 77 Wn.2d at 272. In reviewing whether substantial evidence supports the challenged findings, "we must be cognizant that evidence which is 'substantial' to support a preponderance test may not be sufficient to support the requirements for a test requiring clear, cogent and convincing evidence." Burkey v. Baker, 6 Wn. App. 243, 244, 492 P.2d 563 (1971) (citation omitted); see also Thomas v. Harlan, 27 Wn.2d 512, 518, 178 P.2d 965 (1947) ("Title to real property is a most valuable right which will not be disturbed by estoppel unless the evidence is clear and convincing."). We review questions of law de novo. Babcock v. Mason County Fire Dist., 144 Wn.2d 774, 784, 30 P.3d 1261 (2001).
Our Supreme Court has specified five separate and distinct methods of resolving boundary disputes short of execution of duly recorded formal documents: "(1) [a]dverse 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) (citations omitted). Here, the trial court established the boundary line based on estoppel in pais and parol agreement.
"Estoppel is a preclusion in law, which prevents one alleging or deying a fact in consequence of his own previous act, allegation, or denial, of a contrary tenor." Thomas v. Harlan, 27 Wn.2d 512, 518, 178 P.2d 965 (1947). Estoppel in pais is equitable estoppel by conduct. See Leonard v. Wash. Employers, Inc., 77 Wn.2d 271, 280, 461 P.2d 538 (1969); Peplinski v. Campbell, 37 Wn.2d 857, 861, 226 P.2d 211 (1951).
The trial court found that the boundary line had been established "based upon an express agreement." CP at 11. It did not use the legal term "parol agreement." Because an express agreement is required to establish a parol agreement, it appears that the trial court meant to establish the boundary line based on a parol agreement. See Johnston v. Monahan, 2 Wn. App. 452, 456, 469 P.2d 930 (1970) (parol agreement requires an express agreement).
II. Estoppel in Pais
Vitous argues that the trial court erred in applying estoppel in pais because (1) he did not own the property at the time of the conversation with Jody Harper, (2) the Harpers did not have a right to rely on his alleged boundary representation, (3) he did not make any representations to the Harpers, (4) they did not rely on his alleged representation, and (5) any reliance was unreasonable.
A. Legal Ownership
Vitous argues that the Harpers' cannot prevail on estoppel in pais, because he did not own the property in dispute at the time he made the allegedly relied upon representation. Citing to exhibits not in the record, the Harpers counter that Vitous could bind his mother's estate because he was the personal representative of the estate at the time of the alleged representation. The Harpers also argue that this case should be remanded to the trial court so that it may hear additional evidence on the ownership issue.
Because the record is silent on the date of Vitous's mother's death and the interest of Vitous in his mother's property at the time of the alleged representation, we decline to address Vitous's argument that the Harpers cannot prevail on estoppel in pais based on his lack of ownership. We also decline the Harpers' request to remand this case to the trial court for further evidentiary findings, because we do not consider the legal ownership argument.
The Harpers attach several exhibits to their supplemental brief that they cite to support the date of Vitous's mother's death and the contents of her will. These exhibits are not in the record and are not properly before us.
B. Elements of Estoppel in Pais
To prevail, the Harpers must establish that: (1) Vitous made an admission, statement, or act inconsistent with the claim later asserted; (2) they reasonably relied and acted on Vitous's statement; and (3) Vitous's repudiation of the statement injured them. Leonard, 77 Wn.2d at 280 (citing Harmon v. Hale, 1 Wash. Terr. 422 (1874)). In addition, they must establish that they had "a right to rely upon such acts or representations." Leonard, 77 Wn.2d at 280 (citing Kessinger v. Anderson, 31 Wn.2d 157, 196 P.2d 289 (1948); Bennett v. Grays Harbor County, 15 Wn.2d 331, 130 P.2d 1041 (1942)). And they must establish the elements by clear and convincing evidence. Lilly v. Lynch, 88 Wn. App. 306, 318, 945 P.2d 727 (1997) (citing Thomas, 27 Wn.2d at 518); Fulle v. Boulevard Excavating, Inc., 20 Wn. App. 741, 744, 582 P.2d 566 (1978).
Absent fraud or misrepresentation, a party must establish reasonable reliance to raise an estoppel claim. Burkey, 6 Wn. App. at 248. Thus, the Harpers must establish reasonable reliance because they do not assert fraud or misrepresentation.
C. Right to Rely
In order to establish a right to rely on a representation, it is necessary that:
The party claiming to have been influenced by the conduct or declarations of another to his injury, was himself not only destitute of knowledge of the state of facts, but was also destitute of any convenient and available means of acquiring such knowledge; and that where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel.
Wechner v. Dorchester, 83 Wash. 118, 122, 145 P. 197 (1915) (citation omitted); see also Waldrip v. Olympia Oyster Co., 40 Wn.2d 469, 476, 244 P.2d 273 (1952); Geoghegan v. Dever, 30 Wn.2d 877, 898, 194 P.2d 397 (1948). Vitous argues that the Harpers have failed to establish an estoppel claim because they "had the means and ability to determine where their surveyed boundaries were at any time; they were not hard to find." Br. of Appellant at 19. We agree.
Jody Harper received a title insurance package that included a map of lot 42 when she purchased the property. Although the map of lot 42 included a legal description and showed the boundary measurements of the property, the Harpers never measured their lot. Jody Harper testified that she was not concerned about the boundary location. Instead, she had landscapers install a lawn in the backyard to where she thought her property ended.
The Harpers' property measures 70.39 feet from north to south. Jody Harper testified that the 25 feet encroaching on Vitous's land is a substantial portion of her backyard and, if they did not have the 25 feet encroaching on Vitous's property, they would only have about "three feet" of backyard. RP at 102.
But the Harpers had a map of their plot and, given the size of their property, measuring their plot would not be unduly arduous. They had "the same means of ascertaining the truth" as Vitous and therefore cannot assert estoppel. Wechner, 83 Wash. at 122 (citation omitted). We, therefore, reverse the trial court and hold that the Harpers could not rely on Vitous's alleged statement about the property's boundary. We, thus, do not address the remaining elements of estoppel.
III. Parol Agreement
Vitous also argues that the trial court erred in finding a parol agreement because (1) the Harpers waived the defense when they failed to include it in their pleadings, (2) they did not establish a dispute or uncertainty, and (3) they did not show a meeting of the minds. The Harpers counter that (1) they pled parol agreement, (2) their pleadings should be deemed amended, and (3) they clearly established the parol agreement elements.
Vitous repeats his claim that because he did not hold legal title when the discussion with Harper occurred, he could not make a binding representation. For the reasons set out above, we do not further discuss this claim.
A. Waiver
CR 8(c) requires a party to plead an affirmative defense in the party's answer or it is waived. But if the affirmative defense is tried by the express or implied consent of the parties, the defense is not waived. DeYoung v. Cenex Ltd., 100 Wn. App. 885, 896, 1 P.3d 587 (2000). Washington is a notice pleading state and merely requires a simple, concise statement of the claim and the relief sought. CR 8(a). A party must give the opposing party fair notice of the affirmative defense in its pleadings. CR 8(a); Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 26, 974 P.2d 847 (1999).
Here, the Harpers asserted the affirmative defenses of "boundary agreement and recognition and acquiescence" in their answer. CP at 8. Neither the Harpers nor the trial court used the legal term "parol agreement." But as noted earlier, "boundary agreement" and "express agreement" are terms that connote "parol agreement." The doctrine of parol agreement is essentially an oral agreement to establish a boundary line. See Piotrowski v. Parks, 39 Wn. App. 37, 40, 691 P.2d 591 (1984). We hold that the Harpers asserted a boundary agreement, or parol agreement, in their answer and address the merits of their affirmative defense.
B. Parol Agreement Elements
To prevail on their claim that they and Vitous entered a parol agreement, the Harpers must establish that there was an (1) oral, express agreement (2) between the property owners, (3) to permanently resolve a boundary dispute or uncertainty, (4) followed by actual or constructive possession. Piotrowski, 39 Wn. App. at 40; Johnston, 2 Wn. App. at 456. And because the Harpers assert parol agreement as an affirmative defense, they have the burden to prove the requisite elements. W. Mach. Exch. v. N. Pac. Ry. Co., 142 Wash. 675, 681, 254 P. 248 (1927); Fulle, 20 Wn. App. at 744.
Vitous argues that there was no express agreement because there was no dispute or uncertainty. He asserts that we should disregard the Harpers' professed uncertainty about the boundary line because they could have located their property's boundaries by examining their deed and making measurements. The Harpers counter that the record "clearly establishes that nobody knew where the boundary line was located." Br. of Resp't at 35.
To prove the existence of a parol agreement, there "must be either a bona fide dispute between two coterminous property owners as to where their common boundary lies upon the ground or else both parties much be uncertain as to the true location of such boundary." Johnston, 2 Wn. App. at 457. At trial, both Vitous and Jody Harper testified that they were uncertain about the true location of the boundary line between their properties. Thus, substantial evidence supports the trial court's finding that neither Vitous nor the Harpers "were aware of the surveyed boundary line between their respective parcels of land." CP at 10.
Vitous next argues that there was no meeting of the minds because (1) Vitous installed a "Keep out" sign, (2) the parties did not install a "physical monumentation" to mark the boundary line, and (3) the Harpers encroached beyond the barbed wire. Br. of Appellant at 24. We agree that the evidence fails to support the trial court's finding that the parties agreed on the location of the boundary, but not on the basis that Vitous argues.
To establish parol agreement, the Harpers must show that there was "an express meeting of the minds to permanently resolve the dispute or uncertainty by recognizing a definite and specific line as the true and unconditional location of the boundary." This meeting of the minds must provide a "permanency and specificity of the agreement resolving the dispute or uncertainty." Johnston, 2 Wn. App. at 457.
At trial, Vitous testified that he indicated to Jody Harper what he believed to be the approximate location of the boundary line. When asked if there was a boundary agreement, Vitous responded, "I don't recall any specific statements that I have made, because I don't remember a lot about those things, because it's just casual, idle talk. I'm running my tractor and mower." RP at 32. Vitous argued that the evidence demonstrated that the Harpers did not believe that the barbed wire was the boundary line, because they encroached beyond it.
Jody Harper testified that she was gardening in her backyard and Vitous was mowing brush when Vitous pointed to a strand of barbed wire to indicate the boundary line. She described her impression of the conversation as:
I just felt that Bob — Mr. Vitous — knew what — he's lived there a lot longer than I have, and I just — the — all the property along there lined up with that, and — from, you know, if you look from [my neighbor's] area down, it looked like it lined up all the way down Cedar Falls. So, I was okay with that. I didn't question him; didn't say, are you sure?; I just — that was fine.
RP at 96. Based on this conflicting testimony, the trial court found that the parties agreed on the boundary line location.
Generally, we do not disturb the trial court's findings of fact, unless we "can say as a matter of law that the evidence preponderates against them." Skov, 48 Wn.2d at 717. Here, the record is clear that Jody Harper believed that there was a boundary agreement. But the record does not indicate, either in Jody Harper's or in Vitous's testimony, that she orally or in writing told Vitous that she agreed on a specific boundary line. Nor does her behavior comport with a boundary agreement. She admitted that she established gardens beyond the barbed wire that Vitous placed on the ground. Thus, her testimony that she personally believed there was a boundary agreement based on a single statement by Vitous, without evidence that she told Vitous that she agreed with him or acted in accord with the purported agreement, fails to establish that there was "an express meeting of the minds to permanently resolve the dispute or uncertainty by recognizing a definite and specific line as the true and unconditional location of the boundary." Johnston, 2 Wn. App. at 457 (emphasis added). As a matter of law, the evidence does not support the trial court's finding that the parties had an express agreement about the location of the boundary line.
Vitous argues that the trial court erred by arbitrarily establishing a new boundary line based on the testimony about a single strand of barbed wire that was not straight and is no longer on the property. We do not address this argument.
We reverse and remand for entry of an order quieting title to the disputed property in Vitous.
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.
BRIDGEWATER, J., PENOYAR, J., concur.