Sherri A. Urann, Respondent V. Wilson Luu, Appellant

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FILED
4/26/2021
Court of Appeals
Division |
State of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SHERRI A. URANN, an unmamed
individual, No. 81199-1-I

Respondent, DIVISION ONE
V. UNPUBLISHED OPINION

WILSON LUU, an unmamied
individual,

Appellant.

SMITH, J. — Wilson Luu appeals the trial court’s summary judgment order
holding him liable for tmber trespass after he cut down the hedge separating his
property from his neighbor Sherri Urann’s property. Luu acknowedges that
Urann was the title holder of the hedge but alleges that he acquired the hedge
through adverse possession. Altematively, he alleges that the court erred by
granting summary judgment because Urann failed to comply with a local court
tule, erred by failing to find that Luu’s actions were justified because the hedge
constituted a nuisance, and erred by trebling damages on the basis that the
trespass was willful. The parties also request attomey fees on appeal.

We hold that Luu has not met his burden to establish adverse possession
or that his trespass was not willful. We decline to find that the court erred by
waiving the court rule or by not entenng findings about nuisance, and we decline

to grant attomey fees on appeal. We affinm.

Citations and pin cites are based on the Westlaw online version of the cited material.

No. 81199-1-I/2
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FACTS
Sherri Urann moved into her north Seattle home in 2008. The north side
of her property was lined with a mature English laurel hedge. In February 2018,
Luu purchased and moved into the neighboring home on the north side of the
hedge. At some point, he decided to remove the hedge. On August 6, 2018, he
e-mailed the previous owner of his property, Sharon Bitcon, to ask if she knew
where the hedge was relative to the property line. She answered the same day
to tell him that she did not know the answer, but had “had them maintained so
the property would look nicer.” Two days later, without notice to Urann, Luu hired
a tree service to cut down the hedge.
After the hedge was removed, Urann and Luu each commissioned a
survey. Both surveys indicated that the hedge was south of the recorded
property line. Luu’s survey also identified iron pipes at the south corners of his
property and railroad ties approximately marking the south line of his property.
Urann sued Luu for timber trespass, and Luu counterclaimed to quiet title on the
basis that he and his predecessors in interest had acquired the hedge through
adverse possession.
The parties presented considerable evidence concerning a fence on the
south side of the hedge. Viewing the facts and inferences in the light most
favorable to Luu, from at least 1985 to 2007, there was a white fence running
along the south side of at least the portion of the hedge toward the front of Luu’s

No. 81199-1-I/3
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and Urann’s homes.1 The hedge was initially slightly taller than the fence and by
2007 was some feet taller. By 2006, the backyard of the Urann property was
fully fenced, although it is unknown whether this was through an extension of the
white fence or not. At some point, the white fence was removed, and when Luu
moved in in 2018, there was a wire fence running down the length of the hedge.
This fence was significantly shorter than the hedge and was often obscured by
laurel branches growing through it.
The parties also presented evidence regarding maintenance of the hedge.
Bitcon declared that she had owned Luu’s property from 1988 to 2018 and lived
there from 1988 to 1992. She indicated that she did not recall her neighbors
discussing or maintaining the hedge during the time she lived there and that at
some point after she moved out, she hired a property management company
which arranged for maintenance and yard work. She provided three of the
property manager’s records from 2013 and 2016 which referenced payment for
yard work including “hedge trimming” or “south hedge trim.” Former and current
residents of the Urann property variously stated that they did not recall having the
hedge trimmed, that they trimmed the hedge up to the fence, or that they would
sometimes permit Bitcon’s landscapers to access the Urann property to trim the
south side of the hedge.
1 The evidence supporting this inference is limited to a 1985 King County
record card that appears to show a white fence post at the end of the hedge,
although the rest of the fence is not visible, the statement of Sharon Bitcon that
when she owned the Luu property from 1988 to 2018, she believed the hedge
was hers because of a fence on the south side of the hedge, and a 2007 Google
street view image showing a white fence running along the hedge in the front of
the Urann property.

No. 81199-1-I/4
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In August 2019, Urann moved for summary judgment, and the court
denied the motion. In December 2019, the case was transferred to a different
King County Superior Court judge. Luu then filed a motion for summary
judgment before the new judge, and Urann filed a cross motion for summary
judgment. The court granted summary judgment to Urann and awarded her
treble damages for timber trespass.
Luu appeals.
ANALYSIS
Luu contends that the court erred by granting summary judgment for
Urann and by awarding treble damages. We hold that Luu has not met his
burden to establish adverse possession or that he had a basis to believe the
hedge was his, and that the court did not err by waiving a local court rule or by
failing to make findings about the hedge as a nuisance. Finally, we decline to
award attorney fees on appeal.
Standard of Review
We review an order on summary judgment de novo. Strauss v. Premera
Blue Cross, 194 Wn.2d 296, 300, 449 P.3d 640 (2019). We consider “the
evidence and all reasonable inferences from the evidence in the light most
favorable to the nonmoving party.” Keck v. Collins, 184 Wn.2d 358, 370, 357
P.3d 1080 (2015). “Summary judgment is appropriate only when no genuine
issue exists as to any material fact and the moving party is entitled to judgment
as a matter of law.” Keck, 184 Wn.2d at 370 (footnote omitted).

No. 81199-1-I/5
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Timber Trespass/Adverse Possession
Luu claims that he is not liable for timber trespass, which provides a cause
of action “[w]henever any person shall cut down . . . any tree, . . . timber, or shrub
on the land of another person . . . without lawful authority.” RCW 64.12.030.
While the surveys commissioned by the parties indicate that the hedge was on
Urann’s property, Luu alleges that he and his predecessors in interest acquired
the hedge through adverse possession. We disagree that Luu has met his
burden to establish adverse possession.
“In order to establish a claim of adverse possession, there must be
possession that is: (1) open and notorious, (2) actual and uninterrupted,
(3) exclusive, and (4) hostile.” ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757,
774 P.2d 6 (1989). Each of these elements must exist concurrently for 10 years.
Rayonier, 112 Wn.2d at 757; RCW 4.16.020(1). Because there is a presumption
in favor of the holder of legal title, “the party claiming to have adversely
possessed the property has the burden of establishing the existence of each
element.” Rayonier, 112 Wn.2d at 757.
To establish hostility, the claimant must “treat the land as his own as
against the world throughout the statutory period.” Chaplin v. Sanders, 100
Wn.2d 853, 860-61, 676 P.2d 431 (1984). The characterization of the
possession “will be determined solely on the basis of the manner in which he
treats the property,” without regard to any subjective belief about the ownership
of the land. Chaplin, 100 Wn.2d at 861. Furthermore, “[w]here a fence purports
to be a line fence, rather than a random one, and when it is effective in excluding

No. 81199-1-I/6
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an abutting owner from the unused part of a tract otherwise generally in use, it
constitutes prima facie evidence of hostile possession up to the fence.” Wood v.
Nelson, 57 Wn.2d 539, 541, 358 P.2d 312 (1961).
Here, viewing the facts in the light most favorable to Luu, they do not
establish hostility. Luu points to the existence of the fence and the parties’ and
their predecessors’ maintenance of the hedge as evidence of hostility. We
address both in turn.
First, the fence cannot properly be considered to establish hostility. The
fence was not a straight line, but instead jumped south or north at points, such
that it would not “purport[ ] to be a line fence.” See Wood, 57 Wn.2d at 541;
Lindberg v. Davis, 164 Wash. 680, 684, 4 P.2d 501 (1931) (approving trial court’s
finding that fence, which was “‘not straight, but varie[d] to a marked degree in its
direction at different places,’” was not a boundary line fence). There is no
evidence that the fence ever served the purpose of “excluding” Urann from the
other side, because from even the earliest records, the hedge served as a taller
and more significant boundary than the fence. The evidence indicates that in
1985, the hedge was an effective boundary all the way down the property line,
but there is no indication that the white fence was similarly effective because it is
unknown whether the white fence spanned the length of the hedge. In recent
years, the hedge was growing high over the wire fence, and visibility of the fence
was obscured by laurel branches growing through it. Furthermore, while there
was no evidence regarding the origin of the fence, Urann and her predecessor
both stated that the fence enclosed the yard to contain their pets. Thus, the

No. 81199-1-I/7
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evidence establishes that the hedge, rather than the fence, is what was
“excluding . . . abutting owners.” See Wood, 57 Wn.2d at 541. This conclusion
is bolstered by the fact that a “hedge” is “a fence or boundary formed by a row of
shrubs or low trees.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1048
(2002) (emphasis added). Given this context, we cannot conclude that the fence
establishes hostility.
The only other evidence here that could tend to establish hostility is the
maintenance of the hedge. The evidence shows that from 1988 to 1992, the
occupant of the Luu property does not remember her neighbors maintaining the
hedge, and that from 2006 to 2008, the occupant of the Urann property does not
remember maintaining the hedge. At some point between 1992 and 2013, the
owner of the Luu property hired a property management company which
arranged for yard maintenance, including hedge trimming. The extent of this
trimming is unknown, but on some occasions, Urann permitted the landscapers
access to her backyard to trim the south side of the laurels. There is no evidence
regarding whether Bitcon, the then-owner of the Luu property, ever directly
communicated with the landscapers or directed them with respect to hedge
maintenance. Finally, Urann’s ex-husband stated that from 2008 to 2013, he
performed “routine maintenance” by trimming the south side of the hedge up to
the fence, which he thought was the boundary between the properties.
We cannot say, based solely on “the manner in which” Luu and his
predecessor “treat[ed] the property,” that this possession was hostile. Chaplin,
100 Wn.2d 861. The evidence shows that neighbors each tended to their side of

No. 81199-1-I/8
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the hedge, at least to some extent. Maintenance on the north side of the hedge
does not indicate hostility because “a landowner has the legal authority to
‘engage in self-help and trim the branches and roots of a neighbor’s tree that
encroach onto his or her property.’” Herring v. Pelayo, 198 Wn. App. 828, 835,
397 P.3d 125 (2017) (quoting Mustoe v. Ma, 193 Wn. App. 161, 164, 371 P.3d
544 (2016)). No evidence establishes that Luu’s predecessor routinely
maintained the hedge south of the property line, let alone for 10 years
continuously. Accordingly, even viewing the evidence in the light most favorable
to Luu, he has not established hostility and therefore has not met his burden to
show adverse possession of the hedge.
Luu disagrees and contends that he at least established adverse
possession of the hedge at the front of the property due to the existence of the
white fence. However, as we have concluded, the white fence did not establish
hostility because the hedge, not the fence, excluded abutting owners. Thus, the
court did not err by granting summary judgment for Urann on the issue of timber
trespass, because Luu did not overcome the presumption that the hedge was on
Urann’s property.
Compliance with LCR 7(b)(7)
Luu next contends that the court erred by granting Urann’s summary
judgment motion because she did not comply with the local rules in filing her
cross motion for summary judgment. We disagree.
King County Superior Court’s local rules provide that “[n]o party shall
remake the same motion to a different judge . . . without showing by declaration

No. 81199-1-I/9
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the motion previously made, when and to which judge . . . , what the order or
decision was, and any new facts or other circumstances that would justify
seeking a different ruling from another judge.” KING COUNTY SUPER. CT. LOCAL
CIV. R. 7(b)(7). In this case, Urann did not include such a declaration in her cross
motion for summary judgment. However, she did discuss the original motion and
new evidence in a declaration. Furthermore, in his response to Urann’s motion,
Luu raised the issue of her first summary judgment motion and pointed out the
differences between the two motions. The court chose to rule on the cross
motion anyway. Because “[t]he court has inherent power to waive its rules,” we
find no basis to reverse the court’s determination. Ashley v. Superior Court, 83
Wn.2d 630, 636, 521 P.2d 711 (1974).
Nuisance
Luu claims that the court erred by failing to find that the hedge constituted
a nuisance and that therefore Luu’s trespass was excused or, alternatively, Luu
was entitled to an offset in damages.2 Although Luu’s summary judgment
pleadings discussed the negative impacts that he purportedly suffered as a result
of the hedge, he did not ask the court to make any determination on nuisance,
either as excusing or mitigating Luu’s trespass. In support of his contention on
appeal, Luu makes no citations to the record or to any source of law.3 In
2 Luu contends that he was entitled to an offset for the damages he
purportedly suffered from the hedge in two separate sections of his opening brief.
Both of these sections suffer from the same defects, and we decline to address
either issue.
3 We note that the record is lacking in evidence that would establish the
hedge was a nuisance—it includes two pest control receipts for yellow jacket and
spider extermination and two vet receipts referring to treating Luu’s dog for bee

No. 81199-1-I/10
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reviewing an order on summary judgment, we consider only “issues called to the
attention of the trial court.” RAP 9.12. Furthermore, “[w]e do not consider
conclusory arguments that are unsupported by citation to authority.” Brownfield
v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2014). Therefore, we
decline to address this issue.
Damages
Luu claims that the court erred by trebling damages, which is only
permitted where the timber trespass is “willful,” and by failing to provide an offset
for damages due to the “overgrowth and intrusion” of the hedge.
RCW 64.12.030 provides that in a timber trespass case, “any judgment for
the plaintiff shall be for treble the amount of damages claimed or assessed.”
However, “there must be an ‘element of willfulness’ on the part of the trespasser
to support treble damages.” Blake v. Grant, 65 Wn.2d 410, 412, 397 P.2d 843
(1964). Accordingly, if the trespasser establishes that the trespass was “casual
or involuntary” or that the “defendant had probable cause to believe that the land
on which such trespass was committed was his or her own,” damages should not
be trebled. RCW 64.12.040; Herring, 198 Wn. App. at 834.
We hold that Luu has not established that he had probable cause to
believe the hedge was on his property. The only basis to support such a belief
was the small wire fence on the south side of the hedge, which was barely visible
and not a straight line. He has not claimed that anyone told him the hedge was
stings. None of these records reference the hedge. Luu’s only declaration
simply states that he “had been experiencing issues since moving in which [he]
believed to be caused by the hedges.”

No. 81199-1-I/11
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on his property, and indeed the former owner told him that she did not know
where the property line was two days before he had the hedge cut down. He did
not ask his neighbor where the property line was. He did not see the pipes or
railroad ties that more accurately represented the true property line. He
commissioned a survey after the hedge was cut down, again indicating that he
was not sure where the property line was. Under these facts, we hold that Luu
did not have probable cause to believe the hedge was on his property. See
Blake, 65 Wn.2d at 412 (circumstantial evidence that trespasser did not locate
starting point for determining boundary line, did not ask neighbors where the line
was, and did not see previously blazed boundary line was sufficient to establish
willfulness and support treble damages).
Attorney Fees
Both parties request attorney fees on appeal, and Luu appears to
challenge the award of attorney fees below only on the basis that he should have
prevailed. RAP 18.1 requires parties to request attorney fees in a section of their
brief. “Argument and citation to authority are required under the rule to advise
the court of the appropriate grounds for an award of attorney fees as costs.”
Stiles v. Kearney, 168 Wn. App. 250, 267, 277 P.3d 9 (2012). Here, Urann failed
to cite any authority for an award of fees. Accordingly, we decline to grant her
fees on appeal but affirm the award below.

No. 81199-1-I/12

We affinn.

WE CONCUR:

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