Berg v. Ting

parties subject jurisdiction over the claim. Sub- matter ject authority adjudicate jurisdiction matter type Department controversy had at issue. Because the subject jurisdiction personal jurisdiction and matter both deny Marley’s claim, benefits over Mrs. its decision binding. Appeals. valid and We affirm the Court Brachtenbach, Dolliver, Anderson, C.J., Utter, Durham, Smith, Madsen, JJ., Johnson and concur. January 1995.]

[No. 60928-4. En Banc. Respondents, Y. Ting, Berg, al, Norman et v. Robert Petitioners. al, et P.S., Hurst, Betts, Mines, H. Karen & Bruce Patterson Summerville, Peterson, petitioners. F. for J. and Thomas Tremaine, M. by Stephen Rummage, Wright

Davis respondents.

Brachtenbach, residential Neighboring property J. with of easement dispute grant complies whether owners frauds, and, not, if the easement the of whether statute part perfor- under the doctrine nevertheless enforceable i mance. (the Y. and and Robert Marjorie Berg Bergs) and

Norman (the waterfront Tings) adjacent are owners Ting Kathy brought The Washington Bergs in Seattle. on Lake parcels Tings’ across to an easement the quiet to title action summary judgment granted The court property. trial that the on the basis favor of the and frauds, and void the was with statute comply did not reversed, holding Appeals The Court of unenforceable. with the comply did not grant of easement although the the doctrine was enforceable under it statute of and of Appeals, reverse the Court part performance. We Tings. in favor summary judgment reinstate and directly is located northeast Tings’ property The their Tings purchased adjacent to the The Bergs’ property. In and Cahill. Beverly in October 1988 from John property to the Ca- adjacent and 1983, directly the northeast of parcel Hanson, and Mrs. Kenneth property hills’ was owned Dr. Mrs. to sell Mr. and signed parcel who had contract the 1983, Youngs Young. Cahills and the Stuart Later the a short City submitted an of Seattle for application the and plat which would allow them to subdivide the Cahill dividing Young properties. They proposed parcels the two lots, the and on the property into seven five on Hanson two Cahill property. Bergs publicly plat application.

The the short opposed City neighboring They wrote letters to the of Seattle and owners, expressed neighborhood and property opposition Cahills, Bergs the meetings. Youngs met, Bergs agreed op- would withdraw their exchange for position plat application short driveway and across the easement down the subdivision’s 3,1984, On Berg property. Cahill to the March parties executed written and a their dropped opposition applica- their to the easement. tion. month, gave City approval

The next conditional application. plan still contained plat Although short lots, they reconfigured. on June Consequently, seven were agreement prepared executed an parties updated day, they On the Bergs’ attorney. same executed is at in this grant of easement which issue case. provides

of easement properties their for the [gjrantors respective have combined City applied subdividing them have purpose Subdivision, Variance, Shoreline approval of a Short Seattle and a SEPA-Environmental Development Permit Substantial 83- Determination, Application No. Master Use Permit under (the "Application”). Clerk’s at 202-03. Papers,

Paragraph 5 of the then provided: received, receipt

5. of which Grant Easement. For value Grantors, grant, acknowledged by hereby is hereby Grantors licensees, invitees, convey and and warrant to Grantees their heirs, assigns ease- perpetual, a successors and nonexclusive in, following ment under and over the tracts: driveway designated private A: TRACT The area as the B, C, F, A, and location of Lots the exact across which shall be determined conditionally reference when the

granted Application recorded; finally and and approved same is B: Lots and G of the Short portion TRACT That F for applied Application under the

Subdivision finally approved and situ- the same recorded driveway to in private between the referred ated Washing- A and the shore Lake TRACT above ton, which shall upland boundary portion commencing line at the northwest corner be a running southerly point to the Lot G and southerly boundary of the with the intersection above, A private driveway referred to TRACT southerly along westerly 50 thence feet driveway, south- boundary of thence private said boundary westerly in a to the erly, parallel line F; G, southerly boundary Lot to the of Lot egress to and for the provide ingress and and utilities following Berg Property, subject to the terms benefit of the conditions: B, right, respéct to Tract Grantees shall have With

A. road 20-foot obligation, locate construct but not the driveway private any point B on the Tract between across line . . .. A and Grantees’ referred to Tract Ca- also The grant provided at Papers, Clerk’s hills driveway and that 203. private from a 20-foot-wide road construct could G, F or lot access to the beachfront provide own did, could not locate their they if such road, a 20-foot road from and construct but could locate line. Bergs’ property Cahills to the road constructed that once grant provided 203-04. Papers, Clerk’s line, was to it Bergs’ property road was constructed limit scope modified to surveyed and the road, th,e prior to such surveyed but that over easement survey all modification, encompass shall "the easement at 204. Papers, Clerk’s of Tract B.” legal descriptions the the Appended to document were Berg, properties. and (Ting) Young the Cahill the litigation, The that the event of grant provided fees. attorney costs and would be entitled to prevailing party 18,1984. The on grant The of easement was recorded June they expired, Hanson Youngs’ property interest the (which was Thus, the of easement grant did not it. purchase Hansons) only Cahill signed by prop- not the involves the erty. not

Final did occur plat application the short approval 2, application the finally approved, until 1988. As May six, lots, reconfigured lots contained seven and the were redesignated. hereafter, a grant As discussed of easement must describe Here, estate; the subservient that absolute. subservient grant attempts easement to describe the "finally approved” a future short plat estate reference to That not exist until almost application. document did after the years grant. finally plat

Examination of the short discloses approved the error beyond question attempted description fatal is the glaring deficiency of the subservient estate. The most It description of tract B as of the subservient estate. being portion of lots F and describes the easement over is no lot G finally plat. G as short There approved that finally plat. Equally short fatal is the fact approved plat in the short easement finally approved purported (so Tings’ property) far as it affects located appears E, no easement over entirely grant on lot but the describes lot E. on May

The was recorded finally approved application Tings purchased Cahill several months before the Tings Cahills to the in October. The deed from the property The never used does not mention the easement. an easement. of the Cahill improved any Berg Mr. Shortly Tings purchased property, after the Tings have re- Tings. the easement The mentioned acknowledge the easement. fused title quiet this action Bergs brought March parties The filed Tings’

in the across property. easement Tings argued judgment. cross summary motions for ad- it did not of easement was invalid because and therefore violated the servient estate equately describe out that pointed the statute of frauds. The and B tracts A provided the location of approved regard finally would be determined with application. recorded short plat motion. The trial court granted Tings’ trial court de- ruling sufficiently did not

said in its oral estate, to a future scribe servient but instead referred the legal descrip- uncertain document with uncertain terms and commented, response tions. The trial court also applied of frauds should be Bergs’ claim that the statute fraud, of on the a found no evidence fraud to work it Bergs’ attorney Tings’ particularly the part, noting awarded the of The trial court grant drafted the easement. fees. Tings attorney costs and reversed, hold- Appeals of Bergs

The The Court appealed. frauds, of violated the statute of ing grant that the of part performance. is under the doctrine but enforceable attorney of fees in favor The also reversed the award court fees in the trial court to award Tings, and directed Bergs The the costs and Bergs. favor the court awarded of reconsideration, a for attorney fees on In motion appeal. they are fide Tings for the first time that bona argued denied the Appeals The Court of motion purchasers. reconsideration. petition granted.

The for review was Tings’ both held that Appeals court and the Court trial comply on face and does not of easement is void its grant However, trial court while the with the statute of frauds. basis, this on judgment granted summary enforce- of easement Appeals held that Court part performance. able the doctrine under trial that, contrary holdings court and maintain comply of easement does Appeals, the Court frauds. with the statute of

551 real 64.04.010, "[e]very conveyance Under RCW creating therein, every contract estate, any or interest estate, be real shall any upon or encumbrance evidencing writing, signed be in Every deed . . deed "shall .”. RCW acknowledged . . party thereby, bound an easement right, Although it is incorporeal 64.04.020. Acres Scenic Derbyshire is an interest in land. See Perrin v. (1964). 716, An express Water 63 Wn.2d Corp., meaning of within the conveyance of easement is a Boast, 548, v. 68 Wn.2d E.g., statute of frauds. Ormiston (1966). 550, 413 P.2d 969 comply

To with the "a contract statute description land deed for the must contain conveyance it recourse land definite to locate without sufficiently an it a reference to testimony, to oral or else must contain descrip other does sufficient instrument which contain 341, Mood, 340, P.2d 429 tion.” v. 56 Wn.2d 353 Bigelow (1960). However, easement, a ease case of an "deed [of of an required is not to establish the actual location ment] easement, which convey but an easement” required (Some ours.) servient italics encumbrances estate. 24 App. Smith v. Wn. P.2d King, (1980) cases). (citing The servient estate must A.L.R.4th Nazarenus, See sufficiently described. Seattle 657, 660-61, 374 P.2d 1014 as "a

Here, conveyed describes the interest writing the in, two easement under and over” perpetual nonexclusive land, A tract These tracts are described tracts of tract and B. conditionally granted as certain of the lots of the portions finally ap- "when the same is application short subdivision finally approved and recorded” and "as the same proved 203. granting and . . The Papers, recorded .”. Clerk’s prop- refers of the encumbered description clause thus future, in refers to a erty same the and approved as the the estate. defining then servient nonexistent instrument the description thus did not contain sufficient grant it which did contain land nor did reference instrument description. such a Bergs argue, grant however, the of easement

complies in with the anal- with frauds accord the statute of Ry. ysis Mortgage Bank v. Eastern & in Netherlands Am. argue They Co., P. 916 142 Wash. Lumber rely "floating and on the that the principle was of a easement” exactly not need be the easement’s location They point conveyancing instrument. out established the legal descrip- appended of easement were — Young parcels parcels and Cahill tions of the three (which originally be were intended to encumbered easement) They Berg parcel. Cahill reason that the and the sufficiently property and the location of was described thus be established the easement on that could future. conveyed strips granting Netherlands, clause grantee’s parallel

land lines on each side between railroad may sections as numbers seven three same be laid out and built on and across (21) (7) (17)twenty-one twenty- seventeen (14) (23) range township north of all in number fourteen (1) Meridian, be ... west the Willamette used one right way purposes . other railroad . ..

railroad Netherlands, of easement at 205. The court held right granted to select the location the railroad the However, servient easement over the described sections. — float- were encumbered the sections which estate — granting ing specifically in the were described granting only sharp Here, contrast, the clause clause. B, entire A not describe the does describes tracts granting parcel. had entire clause described the Cahill If the might parcel estate, anal- the case Cahill as the servient support ogous Netherlands does to Netherlands. Bergs’ argument. argument require Bergs’ accepting

Moreover, would clearly granting ignore language which in the clause that we prop parties’ Cahill intent that less than the entire shows the grant, Paragraph erty comprise 5 of the servient estate. refer the entire Cahill Easement”, does not "Grant of titled property. Nothing granting hints that the clause even

553 property estate; instead is the servient entire Cahill granting description which, of tracts clause contains description estate, inadequate servient as a while obviously Cahill than the entire shows that less manifestly it is Where as the servient estate. was intended clearly language granting parties’ apparent was that the (and Young) parcels the entire Cahill not intended to define appended estate, substitute we will not as the servient legal description description parcel in for the of the Cahill Bergs may granting be saved clause in order that the from ment problem which the of ease- the statute of frauds presents. recording system integrity is essential to the

It reject stability the conten- that we of real estate titles adequate append description of the was tion that it recognized legislative that the entire tract. We have Cahill give greater enacting purpose was “to RCW 65.08.070 purchas- authorizing prospective stability by titles, land rely upon the title as disclosed ers or encumbrancers to (Italics ours.) Mignon, 293, Wash. Adams v. 197 the record.” (1938); Black, v. accord Lazov 883, 886, 567 P.2d 233 importance Legislature recognized of be- vital

The has legal description ing from the the exact able to determine 65.04.030(1) provides part: “[D]eeds, con- record. RCW mortgages and block described lot of real estate tracts and plat, or recorded until the shall not be filed and addition plat and made a matter has been filed of such addition provision, was not record”. Under that lots in a short because it described entitled to be recorded plat approved yet existence, and recorded. much less referring deficiencyby its own fatal contains The itself description entirely relying of lots in a short on to and fact) (almost years approved plat to be later recorded. however, should maintain, that the (and they rely parties’ on intent to reflect the

be reformed intent), supporting parts view of that their of the record validity agreement’s assessed under should be then the App. citing Snyder Peterson, 62 Wn. statute of reformed a (1991), where the court P.2d 1204 maintain, assessing validity. contract before its Empire Paper contrary, that under Howell v. Inland denied, 494, 739, Co., 95 App. 28 Wn. 624 P.2d review (1981) therein, an agreement cited Wn.2d 1021 cases be conveyed to containing legal description an inadequate specific perfor- is not reformation or subject void and is to mance. reformation, Fulton, 30 App.

As in Williams v. Wn. to denied, 173, n.1, 920, 632 review 96 Wn.2d 1017 P.2d (1981), flat in Howell that addressed the statement court is containing legal description an an agreement inadequate is to court Williams subject void and not reformation. in How pattern sufficient in the fact said the statement was ell, should not be construed correctly but added that Howell set in an factual prevent appropriate so as to reformation See, Viles, 236 P.2d 768 v. 39 Wn.2d ting. Lofberg e.g., (1951) on the may of real be reformed (conveyances by where mistake is indicated ground of mutual mistake evidence); Warren L. generally see convincing clear II, 34 Shattuck, 1937-1957: Part Washington, Contracts in Peterson, supra, v. Snyder L. 360-61 Wash. Rev. accord, proposi and stands for the Bergs, is cited error mutual mistake leads tion where scrivener’s or be reformed. description, may the contract to the deficient at 527. Snyder,

Here, however, is mutual mistake any there no evidence description, in an resulting inadequate error or scrivener’s to the suf- agreement assessing prior reformation purposes for statute of frauds ficiency description grantees’ (Berg) at- we note that Again appropriate.1 not on a nonexistent docu- relying torney drafted the legal description inserted permitting of land be a correct 1There are cases option purchase, money agreement or without agent subsequent to an an earnest Ass’n, Property Washington violating State Bar Real of frauds. See 2 the statute 1986). case, (2d 37.36, this Those are not relevant ed. cases at 37-24 § Deskbook option purchase money an earnest involve either which does not legal descrip agent correct to insert a no authorization for and where there was later tion at a time. of the subservi- description ment as the sole source of ent estate. contain- an instrument in Howell that

As to the statement specific per- subject is not ing inadequate description did formance, proposition which is cited for the the case Hodin, v. doctrine. Herrmann address the part performance Howell, (1961), at 496. P.2d 21 cited in 58 Wn.2d may applicable Given that the doctrine part would agreement, of an oral which of course the case (none all), it fol- description entail an written inadequate an in- involving in a case may apply lows that the doctrine Under the doctrine of adequate description. written have Appeals both this court and the Court performance, de- agreements containing inadequate specifically enforced 28, 35, Nelson, scriptions. Stephens (1950) (later description the conclusion in that a Stephens if state was reversed county defective it omits the and Viles, Co., 26 v. Allen Lofberg supra); Realty v. Dunbabin (1980). 665, However, 660, as dis- App. Wn. 613 P.2d 570 below, all contract must be proved. cussed the terms of the regard exists in this case with to whether Another issue under the doc- agreement may specifically be enforced were not performance. Tings parties of The part trine However, granted be performance may agreement. specific subsequent where the respect subsequent purchasers with to rights of another under have notice of the purchasers Knutzen, 49 in land. Baird v. conveying interest contract (1956). A 308, 311, significant question 301 P.2d 375 Wn.2d fide case, therefore, Tings are bona is whether this so, should not value; performance if purchasers the Court for reconsideration In their motion granted. be are they argued for the first time Tings Appeals, who took without property of the Cahill purchasers bona fide claimed of the easement or constructive notice actual the encumbrance. took free of they and therefore Bergs, court, in the trial raised the issue never we will not address principles under well-settled though, and 2.5(a); v. Social Department the issue. RAP Kramarevcky 738, 750, Servs., 863 P.2d 535 & Health 122 Wn.2d question Our refusal bona fide purchaser to address the case, if the this however. Even prevent does not resolution of its part performance applicable, is otherwise doctrine are not in this case. requisites satisfied agree part performance, Under doctrine in real which convey ment to an estate 64.04.010 writing requisites with the ROW compliance writing, specifically and may proved and .020 without agree enforced, if part performance there sufficient 826, McCamish, 821, 479 P.2d 919 ment. Miller 78 Wn.2d v. cases). (1971) (citing "is based on doctrine would be fraudulent in certain situations it

premise her] of his duties performance [or party escape permit [permitting] party . . the other an oral contract after. under 2 Washington upon agreement.” in reliance perform (2d 37.40, at 37-27 Ass’n, Deskbook Property State Bar Real § 1986) McCamish, supra). (citing Miller ed. factors, or ele has identified three

This court if has been ments, there which are examined determine out so as to take it of frauds: statute

(1) possession; delivery assumption of actual exclusive (3) (2) consideration; making of payment or tender improvements, referable and valuable permanent, substantial to the contract. 724-25, P.2d 1373

Kruse v. Hemp, (1993); Wn.2d Hastings, Powers v. addition, agree of the specific performance where "be evidence sought, proven contract must

ment is no and which leaves doubt unequivocal clear that character, the contract.” terms, and existence of McKean, Miller, v. 829 (quoting Granquist Fulton, App. Wn. (1947)); v. 30 445, 187 see Williams P.2d 623 (1981); denied, Wn.2d 173, 178, review 632 P.2d ("clear evidence stan- Powers, unequivocal” at 713-17 sought, but lesser applies specific performance dard where George 8A W. applies damages sought); standard where (1963 Real Property § 4463, at 361 Thompson, repl.).2 As to whether evidence of part perfor- there is sufficient mance, the issue is whether consideration alone is sufficient There is no part performance of the of easement. above, dispute only that of the three factors set forth performance alleged Bergs’ here is the withdrawal of their opposition proposal. to the subdivision maintain that alone enough part perfor- consideration is not to show mance. Co.,

In Richardson v. Land Taylor & Livestock 25 Wn.2d 518, 529, (1946), the court observed that there is a diversity opinion importance wide about the relative found, of the strongest three factors. Where all are case found, generally presented, conversely, where none is there is little to a specific performance. warrant decree of Richardson, at 529. any There is conflict as to whether single one of the factors is either all- indispensable sufficient, and the payment of consideration is the least Richardson, convincing of the three. at 529. The court said been, be, "no positive rule has or can formulated for government or decision of all cases but indiscriminately, the determination of each case must depend upon involved therein.” Rich- particular facts and circumstances ardson, uniformly at 529. The court noted: "This court has held payment purchase price, part, whole or is not of itself a sufficient to remove an oral for the sale of land from the operation Richardson, statute” of frauds. at 530. in an after the recently, opinion

More handed down Court case, this opinion issued its in this court said Appeals mance, sufficient evidence of did not reach the ^[2] Kruse because Hemp, supra, there was insufficient evidence of performance contract of the contract. we declined to address whether there was under the clear and issue and We also do not reach this issue. thus did not assess whether unequivocal contract. Here, evidence standard the trial court part perfor there is at two” of least part performance "requires the doctrine of 715, 724-25, Wn.2d the three Hemp, factors. Kruse dictum, since the This statement is did not performance of part court held that the doctrine material and on the apply agreed because the never parties Kruse, at As a definite terms of a 725. essential contract. inaccurate, statement, is also somewhat the statement of part perfor in the doctrine prior because cases where rigid forth a addressed, the court never set mance was In three factors be present. two of the requirement with the obser dictum accords general, though, the court’s found, is two where usually part performance vation however, is no there present; factors are the three must be present two of the three factors absolute rule a real estate part performance to take for the doctrine of This of the statute frauds. conveyancing out necessarily requires in Kruse language clarification of the one, only argument that because rejecting Tings’ case, this two, present rather than of the three factors is part performance apply. doctrine of does however, that consider Tings, with the agree We of part alone is insufficient evidence ation frauds. out of the statute of take the 828-29, the test Miller, said: "As evidenced the court successfully part perfor assert required this state mance, directed to overriding precisely concern is the court’s certain enough a quantum proof ward and concerned with The court agreement”. oral parties’ to remove doubts as granted from the statute said that where relief is would the statute it for "the reason that is enforce — i.e., it was enacted which very purpose be to defeat inherent arising uncertainty of fraud from the prevention Miller, at 829. undertakings.” oral contractual nonmonetary that while the point out aptly some evidence may provide in this case consideration contract, nothing it reveals about kind of of some existence In this agree. any contract. We character or terms of part perfor- of the doctrine function evidentiary case the alone. consideration mance not satisfied Bergs urge, however, of easement The concerned, that where part performance the three will have factors probative possession will never he diminished exclusive, value because making improvements will often be valuable rights granted. inconsistent with limited While this observa- may validity, tion some it does not follow that consid- have part performance eration alone to take should be sufficient Although of easement out of the statute of frauds. recognized doctrine, Richardson, evidentiary pre- doctrine, ais flexible its function must be simply served, and we will not be- abandon that function may apply cause the doctrine be difficult to in certain situa- tions. reaching part perfor-

In its conclusion that the doctrine of Appeals case, in mance is satisfied upon this the Court of relied (Second) (1981). § the Restatement of Contracts 129 Washington ap- § The court said 129 is proach consistent with Powers, i.e., discussed in Richardson and that the de- part performance termination whether there has been de- pends upon the facts and circumstances of each case.

Contrary reasoning, Appeals’ § to the Court of 129 is not part performance recognized by consistent with the doctrine this court. §

Under 129: may A contract for the transfer in land specifi- of interest cally notwithstanding enforced comply failure to with the Stat- party seeking ute of Frauds if it is established ment, enforce- in reasonable reliance on the contract and on the against continuing party assent of the whom enforcement sought, changed injustice position has so his can be only by specific avoided enforcement. (1981). (Second) §

Restatement of Contracts 129 Comment a widely to this section states that it restates what is known part performance Appeals of as the doctrine. Court particularly apt: found comment d to the section clearly making promise admitted or . . . "[T]he [must be] in proved[,] promisee must act reasonable reliance on the [t]he it, had and the action promise, promisor repudiated before the If remedy inadequate. of restitution is must be such that met, taking possession neither of requirements these are money making improvements of payment nor of nor the 560 readily Thus, rendering peculiar services

essential. the money may justify performance, par- compensable action reli- ticularly if also taken other promisee has promise.” ance on the (1993) App.

Berg Ting, 721, 732, P.2d 1349 850 Wn. (Second) (quoting § d 129 cmt. of Contracts Restatement (1981)), granted, review 123 Wn.2d 1013 pro- specific application § 139, which Section 129 is a promissory may estoppel as substitute vides that serve compliance § a to 139 of frauds. Comment with the statute particular expressly "[s]ections 128 and 129 state states applications principle [as 139] to land section of the same (Second) § 139 cmt. a.3 of Contracts contracts”. Restatement applied particular comment d Section Appeals, requires which we the three factors none of Court performance. recognized Court as evidence have application support Appeals of its cited two cases App. Tomulty, § cases, Kirk v. 66 Wn. 129. one these (1992), denied, 231, 237, review Wn.2d 831 P.2d on one side contract court said that convey- acceptance can the other take benefit in Kirk added: of the statute of frauds. The court ance out deny party "Equity what would one should intervene long clearly unjust character, as the an be enrichment clearly and can be contract terms and existence unequivocally of the court.” to the satisfaction established 237). (quoting Berg, Kirk, in Kirk said court at 732 inquiry was intent to cre- is whether there that the critical However, now Kirk, unlike the case at 237. an easement. ate part performance court, consisted in Kirk the before the part improvements, as at least and consideration both adopted section has been in this state. Cases where the 139 has not been 3Section grounds. Family Bldg., Depart urged Med. Inc. v. on other See have been resolved (1985); Lectus, 105, Servs., Inc. v. 104 702 P.2d 459 & Health Wn.2d ment Social 584, (1982); Bank, Lige v. 1001 Dickson Co. Union 97 Wn.2d 647 P.2d Rainier Nat’l Chicken, (1981); Co., 291, Recipe Fried Klinke v. Famous 96 635 P.2d 103 Oil Wn.2d (1980). argument 255, Recently, in Inc., oral the court heard 616 P.2d 644 94 Wn.2d employment an Appeals applied 139 in the context of § the Court of a case where (1994). Inc., Sys., Imaging 124 Wn.2d v. Medical contract. Greaves

561 improved access with an at issue there was easement area agreement. Kirk, at 237- in with the easement road accord 3-factor Also, in did not address the the court Kirk 38. Hemp, 715, 853 121 Wn.2d out Kruse v. formulation set (1993), Hastings, 709, 612 93 Wn.2d 1373 v. P.2d Powers (1980), Taylor Live- v. Land & 371 and Richardson P.2d Co., 518, 171 P.2d 703 stock Franz, 295 Wn.2d P.2d Garbrick (1942), Appeals, also the court said cited Court part performance exception is: test for the "Have changed parties of one his situation to such acts adequately compensated in dam- he extent that cannot be placed language ages original position?” This must or in his though. context, The court Garbrick not be read out part proceeded discuss the kinds of acts which constitute improvements, performance, payment, possession, and significant improvements specifically in that case found that part possession perfor- a lessor in constituted sufficient year. in its of a of 1 On its facts and mance analysis, lease excess distinguishable from the Restatement Garbrick (Second)approach Appeals used. which the Court Application § § 129, follow in this

We decline to case. particular d, comment to enforce the evidentiary underlying this would run counter to function performance state’s doctrine. The does adequate description Noth- of the servient estate. contain ing given, unique otherwise, rev- about the consideration anything any property transaction, and eals about real point certainly nothing We out that about the servient estate. sought, relying party on the where prove by unequivo- doctrine must clear all the of the contract. cal evidence the existence and terms establishing proof However, that there is in addition recog- part performance. we The three factors have has been evidentiary apart import independent from nized have presented to establish which must extrinsic evidence Applying § 129 of the contract. the existence terms evidentiary require abandoning function would part performance case, and leave doctrine this extrinsic evidence establishment of the servient estate to — frauds. a at alone result odds with statute Washing- summary point, § 129 does not reflect on this protections depart law, from the which ton and we decline to doctrine lend the statute of frauds and the estate transactions. real Bergs order enforce- maintain that failure to injustice fraud, a will will ment of the work Bergs’ however, remembered, at- It result. must torney prop- easement, and could have drafted the legal description erly of the servient estate which included a example, have satisfied the statute would incorpo- description, description with metes and bounds Any then-existing plat application. harshness4 ration compliance requiring with the statute result of (or, alternatively, to meet sufficient frauds part performance) evidentiary of the doctrine of function easily Moreover, is no evi- there could have been avoided. parties agreement, Tings, not to the that the who were dence committed fraud. have Tings Bergs argue

Finally, have admitted in their answer to of the easement existence and location judicial complaint, admission and therefore have made exception of frauds. We to the statute which constitutes recognized exception, previously and do such an not have exception exists, However, if so here. even such do Tings judicial As the this case. there was no admission Tings allege complaint have that the note, the their locatable, is not the servient estate asserted that affirmatively Tings state the servient estate answer the their what the also describe is not locatable. referring grant” "purports answer, in their Berg”. by plaintiff "claimed of easement reject Papers, circumstances, we Given these Clerk’s 54. whether, Bergs’ definitely withdrawal establish absent record does not 4This approved. plat, would have been opposition the short the subdivision of their has been judicial a admission Bergs’ the contention that made. fees attorney to their

The ask this court reinstate Tings Court, attorney and to award them Superior awarded the of in the Court including fees on those fees incurred appeal, in and attorney provision an fees costs Appeals, upon based Tings’ grant grant request. the easement. the of We of grant In we hold that the easement does summary, of and that the doctrine of comply with the statute frauds in this to take the performance does not case part apply of We reinstate of out of the statute frauds. grant easement in attorney and fees award favor summary judgment the and attorney appeal the and direct awards of fees on See 18.1. re- discretionary review their favor. RAP We Bergs. the attorney verse fees awards in favor the Andersen, C.J., Utter, Dolltver, Smith, Guy, and Johnson, JJ., concur. —

Durham, part) (concurring part, dissenting J. I concur with the the of the ease- majority grant While frauds, I disagree ment failed to conform with statute of the rigid with the the doctrine of majority’s application The from performance. majority effectively precludes court finding part performance ever in the easement. contrary equitable part perfor- This both the nature mance, cir- weighing unique and the court’s tradition of enforceability each cumstances of case determine of frauds. agreement compliance not in with statute resolved, fully facts of this case not been Because the have summary judgment I for deny parties’ would both motions remand trial. whether before the court concerns dispute not, if an easement conforms with the statute was to remove whether there sufficient complicated, of frauds. While agreement from the statute Cahills submit facts as follows. In the relevant are City of Seattle. plat application5 ted short to the Cahill Bergs, directly adjacent property whose lies Fearing this this property, publicly opposed application. Ca- application’s approval, would slow or thwart property an easement across their Bergs hills offered the par In in return for their cessation opposition. writing. ties executed this opposition their undisputed Bergs dropped It that the ease upon signing plat application the short a modified version approved ment. In Seattle ap Shortly after Seattle’s original application.6 short plat Tings. It is sold their to the proval, the Cahills they when Tings knew of the easement unclear whether event, men when the bought any property. its Tings, they existence. denied tioned the title in Bergs brought quiet this action to In the response, the easement. agreement grant- of an enforceability

In the determining agree- first whether the easement, the court considers ing not, If it does the the statute of frauds. ment conforms with sufficient perfor- whether there is court determines from the statute of frauds. agreement the mance to remove 715, 724-25, (1993); 853 P.2d 1373 121 Wn.2d Hemp, Kruse v. 717, (1980); 709, 612 P.2d 371 93 Wn.2d Hastings, Powers v. 518, Co., 25 Wn.2d & Taylor Richardson v. Land Livestock (1946). if 528-29, part perfor- Even sufficient evi- exists, unequivocal” must "clear mance there terms, agreement character and existence dence of the McCamish, Wn.2d Miller v. 78 its enforcement. compel to (1971) McKean, 821, 829, (quoting Granquist 919 479 P.2d (1947)). 440, 445, 187 P.2d 623 deed, of frauds a the statute insisting on written By in agreements or fraud perjury of mitigates possibility the 64.04.010, .020. The of real RCW conveyance property. for the gives permission property 5Approval plat application owner a the of short property. her subdivide his or By property lots. plat application, was into seven the divided 6In initial short the reconfigured slightly reduced to six. lots had been

565 or per- a fraud recognition of statute frauds reflects only is based agreement more occur when an jury apt handshake, specif- than strength on a rather on ics In for the purchase of a written instrument. contracts precludes or sale of real the statute frauds property, a written testimony reliance on oral by requiring agreement prop- meticulously describe the location refer to the lo- erty, or another instrument describes Hodin, 441, 443, cation. Herrmann v. 58 P.2d 21 Wn.2d 364 property delineation By requiring clear boundaries, systematic the statute of frauds ensures organized property. transfer of contrast, allows merely property an easement one Since is often both

owner to use another. it unnecessary and difficult to the exact boundaries of describe easement, descrip- does not require statute frauds Instead, tion of an the stat- precise location easement. on ute of that a locate the easement frauds dictates deed 869, 871, King, servient estate. Smith v. specific App. Wn. (1980) Rhoades v. (citing 620 P.2d 24 A.L.R.4th 1049 (1909)). Barnes, 102 P. Wash. terms, Bergs written between the

By agreement its granted an consider- and Cahills easement public ation for their discontinuation opposition to have application. short For plat it needed locate the ease- satisfied statute Smith v. King, supra. ment on a servient estate. appli- conditionally approved plat used the short the ease- describing as the basis for the location of cation ment, simultaneously but stated that the location the "finally by referring ap- could be found the easement held, plat Appeals short As the Court of proved” application. either reasonably of the could be read as easement, as providing or fixing the location of v. Berg Ting, the easement the future. locating method result, 721, 729, 1349 As it 68 850 P.2d App. Wn. estate, did and thus to refer to a servient failed with the statute of frauds. comply

566 however,

This are in- recognized, court has there follow from the inequitable stances where an result would re- failure to that has not met agreement enforce quirements of of frauds. Where the repudiating the statute windfall, has party reap developed would this court agreements such part doctrine of to remove performance See from the frauds allow their enforcement.7 statute of and Co., v. Land Taylor supra Richardson & Livestock at 529. circumstances, these sufficient

agreement the failure to conform with the stat- overcomes Richardson, Hastings, v. 528-29; Powers ute of frauds. at v. supra; supra. Kruse Hemp, the Cahills

Given that of the easement between and failed with the to conform statute part next is to determine whether there was sufficient step from the statute performance agreement to remove it of frauds. part

This originally perfor- court the doctrine developed for the agreements mance to allow of oral enforcement v. Land Taylor Richardson purchase/sale property.8 real Co., Miller v. supra; Powers v. supra; Hastings, & Livestock McCamish, supra. We examined three elements or circum- performance part stances to determine whether sufficient occurred: (1) delivery assumption possession of actual and exclusive (2) land; consideration, or tender of the whether payment (3) services; making per- money, property,

in manent, substantial, other improvements,

and valuable referable the contract. Kruse, 724; Powers,

Richardson, cited in 528-29, at 717. at flexible, guidelines. acknowledged general, but We some terms, 7Furthermore, [its] of an "leaves no doubt where evidence existence”, unnecessary character, apply frauds it becomes statute resulting uncertainty developed from was to combat fraud since statute (1971) McCamish, 821, 829, (quoting Miller v. agreements. 479 P.2d 78 Wn.2d (1947)). McKean, 445, 187 Granquist P.2d 623 (1993) Hemp, applied the doctrine 8Kruse v. 853 P.2d Wn.2d agreements of frauds. failed to conform with statute to written Kruse, at 725. strongest provided the First, all elements evidence of three invoking part performance, of doctrine case provided the of elements whereas the total absence these elements, Richardson, Second, of three weakest. at 529. support provided for a the least evidence of consideration finding performance. part Third, Richardson, at 529. of finding present generally for a be two elements needed to performance, majority part "court but as the admits the of requirement rigid of three set a that two never forth making Majority, Finally, present.” be 558. when factors at performance part determination, are not limited a courts considering solely in the elements outlined to the three performance. part Richardson, doctrine of See 528-29. performance, empha- applying part we

In of doctrine positive been, be, that "no rule or formulated sized has can government indiscriminately”. for the all or decision of cases Richardson, Rather, of at 529. the facts and circumstances merits. each case must be considered on their own Richard- applied analysis son, at 529. The court a flexible to deter- Richardson, mine See at 529. whether existed. Today, majority rigid application however, the sets forth a part performance which holds it will of the doctrine of part performance not ing the doctrine of without a show- invoke possession improvement of actual nonrepudiating party. words, In ele- other of the three performance comprising part doctrine, ments evidence finding part will result in a of consideration alone never performance. ignores approach

This the context which doctrine possession developed. purchase/sale agreements, actual along improvement property, consideration, are with and likely By purchase/sale transaction. defini- indicators grantee tion, however, of an easement does not take recipient possession property. actual Whether depends may improvements grant on make of an easement result, often As a consideration the terms of easement. ap- only the doctrine is the plicable element of an easement. say This not to the doctrine of no application has relevant frauds. it

fails conform with the statute of But must adaptable. remain flexible for it Just the statute of of an frauds the distinction between the recognizes easement and the so must purchase/sale property, holding, doctrine of The which part performance. majority’s a on rejects finding part of based categorically performance consideration, finding a court from ever effectively prohibits of a of an part performance easement.

The consid- majority position by arguing defends its that any the or of nothing eration "reveals about character terms The Majority, majority appears contract.” 558. believe finding performance a will lead the part sufficient of the immediately specific performance court order performance, a order how- agreement. specific For court to ever, as to there must be "clear and evidence unequivocal” terms, character, agreement.9 and existence of the Miller the (1971) 821, 829, McCamish, (quot- 479 P.2d 919 Wn.2d McKean, 187 P.2d 623 Granquist v. 29 Wn.2d ing (1947)). in a from majority engages complete departure perfor- by arguing part our the doctrine precedent for determining the basis provides evidentiary mance sole terms, character, agreement. and existence of an the where there "sub- Specific appropriate performance terms, and existence of the character stantial evidence mine.) (Italics Powers, part agreement, performance”. performance, evidence of we require part at 713. While we the performance the itself elucidate require part do Powers, Instead, insist at 722. we on agreement. of an terms of an the exact terms proof” to demonstrate "quantum (Italics omitted.) Miller, The elements at 828-29. agreement. can illuminate comprising part the doctrine terms, character, agreement, and existence of fully Their evidence. with other conjunction can work they enforcement, terms, damages, opposed party seeks 9Where by preponderance character, agreement proved must of an existence 709, 716-17, Hastings, evidence. Powers v. depend facts and circumstances on the relevance will evidentiary general, of the doc- function each case. depending on whether will differ trine of agreement disputed or written. was oral identify terms exists to no written instrument When part perfor- agreement, the of an doctrine and character evidentiary greater value. elements mance has performance — property, possession of the consider- actual — improvements ation, on elucidate agreement. In where of an instances terms and conditions majority’s position may instrument, the there is no written circumstances, has consideration be defensible. Under these evidentiary only term of the value because the weakest agreement payment. it describes is agreement, however, it is neces- is a written

Where there writing. probative sary is im- It to consider the value of writing perative dispels doubts as to ask whether the agreement. In the terms, character, and existence ignore present majority case, written chooses to specifically which between the and Cahills By grants property. an easement across the Cahills’ former evidentiary significant ignoring a written instrument attempt majority to discover the value, the thwarts its own agreement. terms and conditions of the Accordingly deny parties’ sum- I motions for would both judgment, mary remand a trial on the merits and would whether there was sufficient determine from the to remove the statute no doubt taken as whole left whether the evidence agreement. the terms and character Madsen, J., Durham, J. concurs with 29,1995. denied March Reconsideration

Case Details

Case Name: Berg v. Ting

Court Name: Washington Supreme Court

Date Published: Jan 5, 1995

Citation: 886 P.2d 564

Docket Number: 60928-4

Court Abbreviation: Wash.