Joseph Mojarrad & Nicole Ching v. Lorraine Walden, 74546-8

Background

In 2005 Lorraine Walden (seller) conveyed 22 acres by statutory warranty deed to Joseph Mojarrad (buyer); a 1992 survey and seller disclosure represented no access limitations or encumbrances.
Unknown to Mojarrad at closing, Gilbert Walden (neighbor) had long occupied the gravel driveway to the buyer’s parcel and had acquired superior title by adverse possession decades earlier.
Mojarrad first encountered a gate blocking the driveway in 2010 and was told by Gilbert’s representatives that the driveway belonged to the Walden estate; letters and a 2012 declaration by Lorraine supported the estate’s claim.
Mojarrad sued in 2014: quiet title (against the estate), breach of warranty of quiet possession and warranty to defend title, negligent misrepresentation, unjust enrichment, and equitable indemnity (against Lorraine).
The estate and Ron Walden later settled and quieted title to the driveway in the estate; the trial court granted summary judgment for Lorraine on several claims as time-barred; Mojarrad appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether breach of the warranty of quiet possession accrued at closing (2005) or upon the first wrongful disturbance (2010)	Mojarrad: Warranty not breached until actual disturbance (gate) in 2010; claim timely.	Lorraine: Exception (Whatcom Timber) applies because holder of paramount title (Gilbert) was in possession in 2005; statute of limitations began at closing.	Reversed summary judgment for Lorraine as to this claim; material facts remain about whether Gilbert was in "possession" in 2005 such that grantee could not be put into possession.
Whether the seller breached the statutory warranty to defend title and whether tender was effective	Mojarrad: His 2012 letters effectively tendered defense after the estate’s claim was known; claim timely.	Lorraine: Tender ineffective because no lawsuit was pending; she could not in good faith defend (CR 11).	Reversed summary judgment; court held tender need not await a filed suit given clear assertion of adverse claim and seller’s opportunity to defend.
Whether negligent misrepresentation claim accrued in 2010 or 2012 (timeliness)	Mojarrad: He discovered Lorraine’s misrepresentation only in 2012 upon seeing her declaration; claim timely.	Lorraine: Plaintiff had notice earlier (closing or 2010) so claim is time-barred under 3‑year statute.	Affirmed dismissal of negligent misrepresentation: discovery occurred by 2010 when driveway was gated and claimant was told of estate’s ownership.
Whether unjust enrichment and equitable indemnity claims were time-barred	Mojarrad: Claims accrued in 2012 when estate’s claim and Lorraine’s declaration revealed her knowledge; timely.	Lorraine: Claims accrued at closing in 2005; time-barred.	Reversed dismissal as to unjust enrichment and equitable indemnity; genuine issues of fact exist on accrual/timeliness.

Key Cases Cited

Mastro v. Kumakichi Corp., 90 Wn. App. 157 (discussion of warranty to defend title and damages recoverable for defense costs)
Erickson v. Chase, 156 Wn. App. 151 (explaining warranties as future covenants and summary judgment context)
Whatcom Timber Co. v. Wright, 102 Wash. 566 (exception: warranty breached at conveyance when third party with superior title is in possession)
Hovt v. Rothe, 95 Wash. 369 (adverse possession sufficient to establish title despite lack of record title)
Foley v. Smith, 14 Wn. App. 285 (general rule that warranty of quiet possession is not breached until actual or constructive eviction)
West Coast Mfg. & Inv. Co. v. West Coast Improvement Co., 25 Wash. 627 (purchasers do not waive deed covenants by knowledge of defects)