355 P.3d 1210
Wash. Ct. App.2015Background
- Conine owned a parcel split into adjacent lots; a six-foot wooden fence ran between them. Conine sold the western lot to Robert Matichuk (deed described by metes/bounds) and later sold the eastern lot to Leslie Pendergrast (listing described as "fenced-partially").
- Neither deed referenced the fence; Matichuk paced the lot before purchase and acknowledged uncertainty whether the fence aligned with the deed line; he later commissioned a survey showing the fence and a large tree were on his deeded property.
- Pendergrast used, maintained, and treated the fenced area as her backyard from 2006–2009 and relied on the listing and seller disclosure in purchasing. Conine answered "No" to disclosure questions about encroachments.
- In 2009 Matichuk notified Pendergrast he would move the fence to the deed line; he then moved the fence and cut down the tree and treehouse despite Pendergrast's written objection. Pendergrast sued (quiet title, trespass, timber trespass, etc.) and recorded a lis pendens.
- The trial court granted summary judgment quieting title to Pendergrast based on boundary by common grantor; a jury awarded economic and substantial noneconomic damages for trespass and timber trespass. The trial court trebled economic timber-trespass damages but refused to treble noneconomic timber-trespass damages.
Issues
| Issue | Plaintiff's Argument (Pendergrast) | Defendant's Argument (Matichuk) | Held |
|---|---|---|---|
| Whether boundary by common grantor exists such that the fence—not deed—defines the boundary | Conine intended and grantees manifested ownership relative to the fence; Pendergrast used and occupied up to the fence and relied on listing/disclosure | No meeting of minds with Conine; purchases were by legal description only; fence placement inconsistent with deed | Court: Affirmed summary judgment for Pendergrast — parties' conduct and visual notice of the fence established boundary by common grantor |
| Entitlement to attorney fees/costs under lis pendens statute (RCW 4.28.328(3)) | (Implicit) Lis pendens was justified because title dispute was legitimate | Matichuk sought fees arguing lis pendens was improperly filed and unjustified | Court: Denied fees — Pendergrast had substantial justification to record lis pendens |
| Whether the jury's large noneconomic damages required reduction or a new trial | Pendergrast presented testimony of emotional distress, loss of business plans, and health effects supporting damages | Matichuk argued evidence was limited, unrelated stressors existed, and awards were excessive and punitive | Court: Denied new trial/reduction — damages supported by plaintiff's testimony and not the product of passion or prejudice |
| Whether former RCW 64.12.030 requires trebling of noneconomic timber-trespass damages | Trebling statute's plain language mandates trebling of "damages claimed or assessed," which includes noneconomic damages after Birchler | Matichuk urged trebling historically applied only to economic/property loss and noneconomic damages should not be trebled | Court: Reversed trial court — held former RCW 64.12.030 treble all timber-trespass damages including noneconomic damages |
Key Cases Cited
- Winans v. Ross, 35 Wn. App. 238 (Wash. Ct. App.) (visual boundary markers can bind subsequent purchasers under common-grantor principles)
- Birchler v. Castello Land Co., 133 Wn.2d 106 (Wash. 1997) (noneconomic damages may be recoverable in timber trespass actions)
- Broughton Lumber Co. v. BNSF Ry., 174 Wn.2d 619 (Wash. 2012) (timber-trespass statute is penal and construed strictly)
- Thompson v. Bain, 28 Wn.2d 590 (Wash. 1947) (common-grantor doctrine principles)
- Weden v. San Juan County, 135 Wn.2d 678 (Wash. 1998) (standard of review for summary judgment)