Christopher And Suzanne Guest, Appellants V David Lange, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CHRISTOPHER and SUZANNE GUEST,
husband and wife,
No. 46802-6-II
Appellants,
v.
DAVID and KAREN LANGE, husband and
wife, and the marital community comprised
thereof,
UNPUBLISHED OPINION
Respondents.
MELNICK, J. — Christopher and Suzanne Guest appeal the trial court’s summary judgment
orders and final judgment in favor of their neighbors, David and Karen Lange. We conclude that
the trial court did not abuse its discretion by denying the Guests’ motion to amend their complaint;
it did not err by granting the Langes’ motion for summary judgment dismissing the Guests’ claims;
it did not err by denying the Guests’ motion for partial summary judgment; and, it did not err in
instructing the jury. Finally, there was no cumulative error.1 We affirm.
FACTS
The facts of this case are not in dispute. The Guests and the Langes are neighbors in the
Spinnaker Ridge community in Gig Harbor. The Guests reside on Lot 5 and the Langes reside on
Lot 4. Nu-Dawn Homes, Inc. developed the community in 1986. As part of the original
1 The Guests raised many issues in their reply brief for the first time that were not raised in their
opening brief. The Guests further raised issues related to the Coe Family Trust, intervenors in the
original action, in their reply brief for the first time. Pursuant to RAP 10.3(c), we will not consider
them.
Filed
Washington State
Court of Appeals
Division Two
June 14, 2016

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development, Nu-Dawn Homes recorded the Spinnaker Ridge declaration of covenants,
conditions, restrictions, and reservations (CC&Rs), and a document titled “Patio or Deck
Easement” (Easement).2 Clerk’s Papers (CP) at 211. Both documents granted easements for
decks. The easement over the Guests’ property covered an area of 5 feet by 21 feet for the Langes’
deck.
In 2011, the Langes wanted to rebuild their deck because they had concerns with its
structural integrity. The original deck’s footprint covered the easement over the Guests’ property
and an additional encroachment area of approximately three feet by five feet. The Langes talked
with the Guests about their intent to replace the deck. The Guests told the Langes that they did
not have the right to reconstruct their deck on the original deck’s footprint which ran along the
edge of the Guests’ house. The Langes decided to rebuild the deck in a smaller area than the
original one.
Later, the Langes’ lawyer informed them that they had the legal right to rebuild the deck
within the location of the original deck. The Langes asked the Guests for permission to rebuild
the deck as it had originally existed. The Guests refused to give their permission. Eventually, the
situation deteriorated, and the Langes communicated to the Guests that they were going to rebuild
the deck in the same place as the original one. In April, while the Guests were out of town, the
Langes rebuilt the deck in the same footprint as the original deck.
2 The Easement was recorded under Pierce County Auditor Document No. 8704290509 and the
CC&Rs were recorded under Pierce County Auditor Document No. 8608080472.

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I. PROCEDURAL HISTORY
A. Complaint, Answers, and Counterclaims
In December 2011, the Guests filed a complaint alleging breach of contract and trespass.
In May 2012, the Langes filed an answer, affirmative defenses, and counterclaims to quiet title
and for trespass. The Guests answered the Langes’ counterclaims and asserted affirmative
defenses.
B. Amended Complaint
In October, the Guests filed their first amended complaint. It alleged breach of contract,
trespass, and breach of the covenant of good faith and fair dealing. It also alleged the Langes had
a duty to indemnify the Guests for all claims arising from their actions in connection with the deck
and the utilization of the easement.
The Langes filed an answer with affirmative defenses and a counterclaim. They admitted
that the deck might encroach on the Guests’ property, but the original CC&Rs allowed it, and that
the deck covered the same area as the original deck. The Langes alleged that the Guests trespassed.
The Langes denied all of the Guests’ causes of action. In their counterclaim, the Langes relied on
the following language from paragraph 16.4 of the 1986 CC&Rs:
Encroachments: Each Lot and all Common Areas are hereby declared to have an
easement over all adjoining Lots and Common Areas for the purpose of
accommodating any encroachment . . . and any encroachment due to building
overhang or projection, and any encroachment for a deck, patio and/or parking area
or driveway constructed (and assigned for the use of a Lot) by Developer. There
shall be valid easements for the maintenance of said encroachments . . . however,
that in no event shall a valid easement for encroachment be created in favor of an
Owner or Owners if said encroachment occurred due to the willful act or acts with
full knowledge of said Owner or Owners. In the event a Lot or Common Areas are
partially or totally destroyed, and then repaired or rebuilt, the Owners agree that
minor encroachments over adjoining Lots and Common Areas shall be permitted,
and that there shall be valid easements for the maintenance of said encroachments
so long as they shall exist.

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CP at 49.
The Guests answered the Langes’ counterclaim and asserted affirmative defenses. They
alleged that the indemnity provision contained in paragraph D of the Easement was an insurance
contract that obligated the Langes to indemnify and insure the Guests against suits related to the
deck. Paragraph D of the Easement states:
Grantee promises, covenants and agrees that the Grantor shall not be liable for any
injuries incurred by the Grantee, the Grantee’s guests and/or third parties arising
from the utilization of said easement and further Grantee agrees to hold Grantor
harmless and defend and fully indemnify Grantor against any and all claims,
actions, and suits arising from the utilization of said easement and to satisfy and all
judgments that may result from said claims, actions and/or suits.
CP at 212.
C. Motions to Amend Complaint and for a Continuance
On January 29, 2013, the Guests filed a motion to amend their complaint and to continue
the trial. The proposed second amended complaint would have added five new defendants and
eleven new causes of action. It was 135 pages long. The Guests claimed that they received late
discovery responses and the documents produced gave rise to new causes of action. The case was
set for trial on June 4. The Guests requested a six month continuance of all deadlines, including
those that had already passed, to join new parties and to adequately prepare for trial.
The Langes opposed the motion because the deadline to add defendants had passed and
because they faced significant prejudice if the scope of this litigation expanded and was continued.
The trial court denied the motion because it was untimely and because the Langes would be
prejudiced.

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D. Summary Judgment Motions3
1. Guests’ Motion for Summary Judgment
On March 8, the Guests filed a motion for summary judgment and dismissal of the Langes’
counterclaims of trespass and to quiet title. The Guests claimed they could not trespass on their
own property. Even if there was an easement, it would be for the mutual benefit of the parties.
The Guests also claimed that paragraph D of the Easement barred any counterclaims by the Langes.
On April 8, the Langes responded to the Guests’ motion for summary judgment and agreed
that there were no genuine disputes as to the material facts, but because the Guests could not show
that they were entitled to judgment on either of the Langes’ counterclaims, the motion should be
denied.
2. Langes’ Motion for Summary Judgment
On March 22, the Langes filed a motion for summary judgment of the Guests’ claims,
arguing that each claim was legally insufficient. In support of their motion, the Langes included
surveys of the Guests’ and Langes’ lots that showed the deck easement area, the actual deck, and
the disputed three feet by five feet area.
On April 9, the Guests responded and claimed the Langes did not have standing because
their counterclaims were barred, and that the multiple contracts the Guests entered into with the
Langes defeated the motion for summary judgment.
3. Court’s Rulings on Summary Judgment Motions
On April 19, the trial court heard arguments on the summary judgment motions. On May
6, the trial court entered a written order granting the Guests’ motion for dismissal of the
3 The facts previously outlined above are those the trial court relied on when deciding the motions
for summary judgment.

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counterclaim for trespass, but denying the motion to quiet title. The trial court also ruled that the
indemnification language in paragraph D of the Easement did not bar the other counterclaims. On
that same date, the trial court entered a written order granting the Langes’ summary judgment
motion in part, dismissing the Guests’ claims for trespass with respect to the area described in the
Easement, for breach of contract for a violation of the CC&Rs, for breach of contract based on the
alleged contract to share the Langes’ deck, for breach of indemnity, and for breach of duty of good
faith and fair dealing.4
After the ruling on both motions for summary judgment, the following claims and
counterclaims remained: the Guests’ claim for trespass regarding the three feet by five feet
encroachment area of the deck; the Guests’ claim for breach of contract based on the Langes’
alleged promise to not build a deck on the easement area; and the Langes’ claim to quiet title.
E. Other Motions
On May 6, the Guests filed CR 56(f) declarations for postponement of entry of the summary
judgment orders until the conclusion of discovery, and for denial of the Langes’ motion for
summary judgment because the grantor in the Easement was not the owner of the development.
The Guests’ declarations claimed that they acquired newly discovered evidence that proved the
Easement was invalid, including that Nu-Dawn Homes Limited Partnership owned and developed
the community, not Nu-Dawn Homes Inc., the listed grantor on the Easement.5 The trial court
ruled that the declarations were untimely and declined to consider the Guests’ arguments.
4 The court orally ruled that the Langes had the right to rebuild the deck in the easement area.
5 The Guests requested the continuance to potentially add the prior owners of Lot 5 as a party to
the action.

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II. TRIAL
The case proceeded to jury trial with testimony consisting of the same pertinent facts as
summarized above. Prior to trial, the Guest’s moved in limine that the parties be prevented from
presenting any testimony, evidence or argument that there was any easement on the Guests’
property that benefitted the Langes’ property. The trial court denied the motion, stating that it did
not understand the motion and it had already granted summary judgment and ruled that a valid
easement existed.
A. Jury Instructions
The Guests argued about three specific jury instructions. The trial court instructed the jury
using an instruction the Langes proposed. It read, “If you find that plaintiffs justifiabl[y] relied on
defendants’ promise not to build a new deck in the area identified in the patio or deck easement,
then there was consideration.” CP at 4646, 4747. The trial court gave the Langes’ proposed
instruction because it did not understand the Guests’ proposed instruction. In ruling, the trial court
explained that the instruction would still allow the Guests to argue their theory of the case, i.e. that
they justifiably relied on the Langes’ promise not to build a new deck on the easement.
The Guests proposed an instruction on the implied duty of good faith and fair dealing.
Although the Langes objected, the trial court agreed to give the instruction, but inadvertently failed
to give it.
The trial court also instructed the jury regarding the Easement. “The Court has determined
as a matter of law that Defendants had the right to rebuild in and occupy the area described in the
patio or deck easement recorded under Pierce County Auditor Document No. 8704290509 [the
Easement].” Report of Proceedings (RP) (July 15, 2014) at 132; CP at 4755 (Instr. 17). The trial

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8
court noted that it had determined the validity of the Easement at summary judgment, but the
Guests could still argue that there may have been some contract that vacated the Easement.
The trial court asked the parties to check the jury instruction packet to make sure it
accurately reflected the court’s rulings. Both parties agreed the packet was correct apparently
unaware that it did not include the good faith and fair dealing instruction.
B. Verdict
On July 16, 2014, the jury returned a special verdict in the Langes’ favor. The jury found
the Langes did not breach a contract with the Guests and they did not breach their covenant of
good faith and fair dealing with the Guests. The jury also found that the new deck, which was in
the same position as the old deck, did not trespass on the Guests’ property. On September 19, the
trial court entered judgment for the Langes, dismissed all of the Guests’ claims with prejudice,
awarded judgment to the Langes on their claim to quiet title. It awarded the Langes $565 for
attorney fees. The Guests appeal.
ANALYSIS
I. MOTION TO AMEND COMPLAINT
The Guests argue that the trial court abused its discretion by denying their motion to amend
their complaint because a motion’s timeliness alone is not a proper reason to deny a motion to
amend. We disagree in part because the way the Guests frame the issue does not accurately reflect
the trial court’s ruling. The trial court denied the motion because it was untimely and because it
would prejudice the Langes.
A. STANDARD OF REVIEW
We review a trial court’s ruling on a motion to amend a complaint for abuse of discretion.
Caruso v. Local Union No. 690 of Int’l Bhd. of Teamsters, 100 Wn.2d 343, 351, 670 P.2d 240

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9
(1983). A trial court abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971). To amend a pleading after the opposing party has responded, the party seeking to amend
must obtain the trial court’s leave or the opposing party’s consent. CR 15(a).
Leave to amend a complaint should be freely granted unless the opposing party would be
prejudiced. Olson v. Roberts & Shaffer Co., 25 Wn. App. 225, 227, 607 P.2d 319 (1980),
repudiated on other grounds by State v. Eppens, 30 Wn. App. 119, 633 P.2d 92 (1981). In
determining prejudice, a court may consider undue delay and unfair surprise as well as the futility
of amendment. Herron v. Tribune Publ’g Co., 108 Wn.2d 162, 165, 736 P.2d 249 (1987). Undue
delay is a proper ground for denying leave to amend. Elliott v. Barnes, 32 Wn. App. 88, 92, 645
P.2d 1136 (1982). “In all cases, ‘“[t]he touchstone for denial of an amendment is the prejudice
such amendment would cause the nonmoving party.”’” Herron, 108 Wn.2d at 166 (quoting Del
Guzzi Constr. Co. v. Global Nw., Ltd., 105 Wn.2d 878, 888, 719 P.2d 120 (1986) (quoting Caruso,
100 Wn.2d at 350))).
Where the proposed amendment encompasses new concerns and new facts, the likelihood
of prejudice to the defendant is greater. “When an amended complaint pertains to the same facts
alleged in the original pleading, denying leave to amend may hamper a decision on the merits.”
Herron, 108 Wn.2d at 167. “When the amended complaint raises entirely new concerns, the
plaintiff's right to relief based on the facts in the original complaint is unaffected.” Herron, 108
Wn.2d at 167. “Moreover, the defendant in the latter case is more likely to suffer prejudice because
he has not been provided with notice of the circumstances giving rise to the new claim and may
have to renew discovery.” Herron, 180 Wn.2d at 167. “Appellate decisions permitting
amendments have emphasized that the moving parties in those cases were merely seeking to assert

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a new legal theory based upon the same circumstances set forth in the original pleading.” Herron,
108 Wn.2d at 166.
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
Here, the Guests moved to file an amended complaint more than seven months after the
deadline to add defendants had passed. In addition, their motion came nearly nine months after
the Langes filed their answer and three months after the Guests filed their first amended complaint.
The Guests attempted to add five new defendants and eleven new causes of action that
were significantly different from the original claims. Many of the new claims were based on
conduct that occurred well after the Langes reconstructed the deck, and many of the new claims
involved conduct by third parties who were not named as defendants. The trial court concluded
that the filing of the second amended complaint would have extended litigation over a long period
of time, and would have caused undue delay that would clearly prejudice the Langes. Because
these reasons are tenable, the trial court did not abuse its discretion. There is no error.
II. LANGES’ MOTION FOR SUMMARY JUDGMENT
The Guests argue the trial court erred by granting the Langes’ motion for summary
judgment and dismissing the Guests’ breach of contract and indemnity claims. They also argue
the trial court erred by granting summary judgment on the validity of the Easement because it did
not consider new evidence included in their CR 56(f) declarations.6 We disagree.
6 The Guests do not argue that the trial court improperly granted summary judgment based on the
information it had at the time. Rather, they argue that with the new information contained in the
declarations, summary judgment should not have been granted.

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A. STANDARD OF REVIEW
We review summary judgment orders de novo, engaging in the same inquiry as the trial
court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary judgment
is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” CR 56(c). We view the evidence and
draw reasonable inferences from it in a light most favorable to the nonmoving party. Schaaf v.
Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).
A party moving for summary judgment bears the burden of demonstrating that there is no
genuine issue of material fact. Atherton Condo. Apt.-Owners Ass’n Bd. of Dirs. v. Blume Dev.
Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). “A material fact is one upon which the outcome
of the litigation depends in whole or in part.” Atherton, 115 Wn.2d at 516. If the moving party
satisfies its burden, the nonmoving party must present evidence demonstrating that a material fact
remains in dispute. Atherton, 115 Wn.2d at 516.
The nonmoving party’s response, by affidavits or as otherwise provided under CR 56, must
set forth specific facts that reveal a genuine issue for trial. Grimwood v. Univ. of Puget Sound,
Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). “[C]onclusory statements of fact will not suffice.”
Grimwood, 110 Wn.2d at 360. If the nonmoving party fails to do so, and reasonable persons could
reach but one conclusion from all the evidence, summary judgment is proper. Vallandigham v.
Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).

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B. DISMISSAL OF GUESTS’ BREACH OF CONTRACT CLAIM
The Guests argue that the trial court erred by dismissing their breach of contract claim
based on the CC&Rs.7 In addition, the Guests contend that because the Langes admitted that they
were bound by the CC&Rs, the trial court should have vacated the interlocutory summary
judgment order dismissing the Guests’ claims. We disagree.
A contract is an agreement creating an obligation. See Ketcham v. King Cty. Med. Serv.
Corp., 81 Wn.2d 565, 593, 502 P.2d 1197 (1972). To form a contract, the parties must objectively
manifest their mutual assent. Yakima County Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d
371, 388, 858 P.2d 245 (1993). Mutual assent is expressed by an offer and acceptance of that
offer. FDIC v. Uribe, Inc., 171 Wn. App. 683, 689, 287 P.3d 694 (2012). “A contract requires an
offer, acceptance, and consideration.” FDIC, 171 Wn. App. at 688. The “terms assented to must
be sufficiently definite” and “supported by consideration to be enforceable.” Keystone Land &
Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 178, 94 P.3d 945 (2004).
We apply principles of contract interpretation to interpret provisions in CC&Rs and other
governing documents relating to real estate developments. See, e.g., Roats v. Blakely Island Maint.
Comm’n, Inc., 169 Wn. App. 263, 273-75, 279 P.3d 943 (2012). Contract interpretation is a
question of law we review de novo. Dave Johnson Ins. Inc. v. Wright, 167 Wn. App. 758, 769,
275 P.3d 339 (2012). “The purpose of contract interpretation is to determine the parties’ intent.”
Roats, 169 Wn. App. at 274. Contractual language generally must be given its ordinary, usual,
and popular meaning. Jensen v. Lake Jane Estates, 165 Wn. App. 100, 105, 267 P.3d 435 (2011).
7 Because we conclude that the CC&R’s did not form a contractual relationship between the
parties, we do not decide whether a genuine issue of material fact existed.

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Both parties agreed that the 1986 CC&Rs applied. The resolution of this cause of action
rests entirely on a legal interpretation of paragraph 16.4 and whether it formed a contractual
relationship between the parties. The CC&Rs were developed for the Spinnaker Ridge community
long before either the Guests or the Langes purchased a home in the community. It is clear that
the plain language of this paragraph is not a contract between the Langes and the Guests. Nothing
in the CC&Rs gives one homeowner a contract cause of action against another homeowner. The
elements of a contract are missing. The parties did not agree with each other. Because the CC&Rs
do not grant any contract rights, the Guests would have no basis to sue the Langes for breach of
the CC&Rs.
The Guests rely on Piepkorn v. Adams, 102 Wn. App. 673, 10 P.3d 428 (2000), as support
for their argument that the CC&Rs provide for a cause of action in contract. This reliance is
misplaced. In Piepkorn, the court held that an adjoining landowner could get injunctive relief but
could not recover damages. 102 Wn. App. at 685-86.
The trial court did not err by dismissing this cause of action because there is no contract
between the parties based on the CC&Rs.
C. TRIAL COURT’S DISMISSAL OF GUESTS’ CLAIM OF BREACH OF INDEMNITY
The Guests argue that the trial court erred by dismissing their breach of indemnity claims
because the trial court’s ruling was contrary to the plain language of paragraph D of the Easement.
We disagree.
1. Legal Principles
“‘Indemnity agreements are essentially agreements for contractual contribution, whereby
one tortfeasor, against whom damages in favor of an injured party have been assessed, may look
to another for reimbursement.’” MacLean Townhomes, L.L.C. v. Am. 1st Roofing & Builders Inc.,

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133 Wn. App. 828, 831, 138 P.3d 155 (2006) (quoting Stocker v. Shell Oil Co., 105 Wn.2d 546,
549, 716 P.2d 306 (1986)). “When interpreting an indemnity provision, we apply fundamental
rules of contract construction.” Maclean Townhomes, 133 Wn. App. at 831. The words used in a
contract should be given their plain and ordinary meaning. Maclean Townhomes, 133 Wn. App.
at 831. “Courts may not adopt a contract interpretation that renders a term absurd or meaningless.”
Maclean Townhomes, 133 Wn. App. at 831.
2. The Trial Court Properly Granted Summary Judgment on the Breach of
Indemnity Claim
The indemnity provision on which the Guests rely is contained in paragraph D of the
Easement. A plain reading of this language shows that it is to bind the indemnitor with respect to
claims asserted against the indemnitee by third parties. This interpretation is in accord with City
of Tacoma v. City of Bonney Lake, 173 Wn.2d 584, 269 P.3d 1017 (2012). In City of Tacoma, the
court interpreted the broad language of an indemnity provision. 173 Wn.2d at 593. It held that
while Tacoma agreed to indemnify and defend another city, the proposed “interpretation produces
an absurd result . . . : Tacoma would be forced to bear all costs for litigation when any dispute over
contractual performance between parties arises. That result simply cannot be obtained from
reading the provision as it currently exists.” City of Tacoma, 173 Wn.2d at 594.
The indemnity clause does not mean, as the Guests propose, that the Langes would be
required to indemnify them for all claims related to the Easement in any way. The only reasonable
interpretation of the clause is that it only applies to suits related to injury, or where a plaintiff might
sue the Guests because of injury caused by or on the Langes’ deck. It does not apply to the
circumstances of this case.
The trial court did not err by granting the Langes’ summary judgment motion on the
Guests’ claim of breach of indemnity.

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D. THE TRIAL COURT DID NOT ERR IN REFUSING TO CONSIDER NEW EVIDENCE OR
MODIFY THE PARTIAL SUMMARY JUDGMENT ORDER
The Guests argue that the trial court erred by refusing to hear additional evidence on the
partial summary judgment motion or to continue the hearing.8 We disagree.
1. CR 56(f) Declarations
A trial court may accept affidavits at any time before issuing its final order on summary
judgment. Felsman v. Kessler, 2 Wn. App. 493, 498, 468 P.2d 691 (1970); see Jobe v.
Weyerhaeuser Co., 37 Wn. App. 718, 727, 684 P.2d 719 (1984). Its decision on whether to accept
or reject untimely filed affidavits lies within the trial court’s discretion. Felsman, 2 Wn. App. at
498. A “trial court has discretion to reject an affidavit submitted after the motion has been heard.”
Brown v. Peoples Mortg. Co., 48 Wn. App. 554, 559, 739 P.2d 1188 (1987). We review the trial
court’s decision for an abuse of discretion. Brown, 48 Wn. App. at 559.
CR 56(f) states:
Should it appear from the affidavits of a party opposing the motion that, for reasons
stated, the party cannot present by affidavit facts essential to justify the party’s
opposition, the court may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or depositions to be taken or
discovery to be had or may make such other order as is just.
The trial court did not abuse its discretion by declining to consider the declarations the
Guests presented. At the presentation of the summary judgment order, the Langes told the trial
court they did not receive the declarations until that morning. The trial court declined to consider
the Guests’ declarations because they were untimely and the Guests were attempting to potentially
add other parties.
8 The Guests also assign error to the trial court’s denial of their motion in limine as to the invalidity
of the Easement. Their brief does not argue this point or cite to authority or to the record. We do
not review it. RAP 10.3(6).

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Under CR 59(b), “[a] motion for a new trial or for reconsideration shall be filed not later
than 10 days after the entry of the judgment, order, or other decision.” If the Guests wanted the
trial court to reconsider its decision on the summary judgment motion because of newly discovered
evidence the Guests could not have obtained previously with reasonable diligence, they should
have filed a motion for reconsideration on that issue. CR 59(a)(4). They failed to do so. If a party
fails to timely move for reconsideration, the party is “not entitled to relitigate the facts and issues
decided on summary judgment.” Barrett v. Friese, 119 Wn. App. 823, 851, 82 P.3d 1179 (2003).
In addition, RAP 9.12 provides that:
On review of an order granting or denying a motion for summary judgment
the appellate court will consider only evidence and issues called to the attention of
the trial court. The order granting or denying the motion for summary judgment
shall designate the documents and other evidence called to the attention of the trial
court before the order on summary judgment was entered. Documents or other
evidence called to the attention of the trial court but not designated in the order shall
be made a part of the record by supplemental order of the trial court or by stipulation
of counsel.
We will not consider this issue further because the Guests did not submit their declarations to the
trial court before it considered summary judgment arguments.
III. JURY INSTRUCTIONS
The Guests argue that the trial court erred in instructing the jury because it misstated the
definition of consideration, it instructed the jury that the Easement created a valid easement, and
it failed to provide an instruction defining the duty of good faith and fair dealing. We disagree.
A. Standard of Review
Generally, we review a trial court’s decision on whether to give a jury instruction for an
abuse of discretion. Tuttle v. Allstate Ins. Co., 134 Wn. App. 120, 131, 138 P.3d 1107 (2006). But
where a trial court’s decision to give an instruction is based on a ruling of law, we review the ruling

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de novo. Tuttle, 134 Wn. App. at 131. If an instruction contains an erroneous statement of the
applicable law it is reversible error if it prejudices a party. Thompson v. King Feed & Nutrition
Serv., Inc., 153 Wn.2d 447, 453, 105 P.3d 378 (2005). Our Supreme Court summarized the
standard of review in Keller v. City of Spokane, 146 Wn.2d 237, 249-50, 44 P.3d 845 (2002): “Jury
instructions are sufficient when they allow counsel to argue their theory of the case, are not
misleading, and when read as a whole properly inform the trier of fact of the applicable law. Even
if an instruction is misleading, it will not be reversed unless prejudice is shown. A clear
misstatement of the law, however, is presumed to be prejudicial.” Error is prejudicial if it affects
or presumptively affects the outcome of the trial. Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d
1097 (1983).
B. Jury Instruction 9—Definition of Consideration
The Guests argue that the trial court erred by instructing the jury on the definition of
consideration because it misstated the law. We disagree.
We review this definitional instruction de novo. Tuttle, 134 Wn. App. at 131. The trial
court’s instruction stated “If you find that plaintiffs justifiably relied on defendants’ promise not
to build a new deck in the area identified in the patio or deck easement, then there was
consideration.” CP at 4747. This instruction did not misstate the law.9 “Every contract must be
supported by a consideration to be enforceable.” King v. Riveland, 125 Wn.2d 500, 505, 886 P.2d
160 (1994). “Consideration is any act, forbearance, creation, modification or destruction of a legal
relationship, or return promise given in exchange.” King, 125 Wn.2d at 505. To constitute
9 It was based on a patterned instruction. 6A WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL
301.04, at 178-79 (6th ed. 2009).

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consideration, an act or promise “must be bargained for and given in exchange for the promise.”
King, 125 Wn.2d at 505.
The trial court’s instruction accurately stated the law and allowed both parties to argue their
theories of the case. In fact, during closing argument the Guests argued,
You have heard evidence that when [the Langes] wrote us by e-mail on
March 12th, after we had reached this agreement, after they had made the promise,
after we had this contract, that they wrote us and they asked us for permission to
extend further . . . and would we allow them to go further forward, which is actually
south, but further forward.
That all on its own is an admission to you that, yes, we did have a contract.
Yes, we did have an agreement, and that they recognized that what was required at
that point was to ask our permission.
RP (July 15, 2014) at 139.
We conclude that the trial court did not err by instructing the jury on the definition of
consideration because the instruction properly informed the jury of the applicable law.
C. Jury Instruction 17—Valid Easement
The Guests argue that the trial court erred in instructing the jury that there was a valid
easement because they demonstrated at trial that the easement was invalid. We disagree.
Here, the trial court based its decision to give the jury instruction on its previous summary
judgment ruling that the Easement created a valid easement. Such ruling has not been appealed.
Therefore, we review this instruction de novo. Tuttle, 134 Wn. App. at 131.
An express conveyance of an easement by grant or reservation must be made by written
deed, signed by the party bound by the deed, and the deed must be acknowledged. RCW
64.04.010; 64.04.020. Accordingly, a deed of easement is required to convey an easement that
encumbrances a specific servient estate. Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995).
Similarly, a “‘deed of easement is not required to establish the actual location of an easement, but

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is required to convey an easement’ which encumbrances a specific servient estate.” Berg, 125
Wn.2d at 551 (quoting Smith v. King, 27 Wn. App. 869, 871, 602 P.2d 542 (1980)). The agreement
to the easement by the owner of the servient estate is a vital element in the creation of an easement.
Beebe v. Swerda, 58 Wn. App. 375, 382, 793 P.2d 442 (1990).
“No particular words are necessary to constitute a grant, and any words which clearly show
the intention to give an easement, . . . are sufficient.” Beebe, 58 Wn. App. at 379. “In general,
deeds are construed to give effect to the intentions of the parties, and particular attention is given
to the intent of the grantor when discerning the meaning of the entire document.” Zunino v.
Rajewski, 140 Wn. App. 215, 222, 165 P.3d 57 (2007).
Because the Guests have not appealed from the trial court’s summary judgment order
determining the validity of the easement, it is valid, and the trial court properly instructed the jury.
D. Jury Instruction on Good Faith and Fair Dealing
The Guests contend that the trial court erred by failing to instruct the jury on the duty of
good faith and fair dealing, despite agreeing to provide the instruction. They argue that the failure
to instruct the jury on this issue prejudiced them. We do not consider the issue because the Guests’
waived their right to appeal the issue when they failed to object to the missing instruction.
It is well settled that an “appellate court may refuse to review any claim of error which was
not raised in the trial court.” RAP 2.5(a). The Guests did not object to the trial court’s failure to
give the instruction. The trial court asked the parties to check the jury instruction packet and “agree
with [the court] that it encompasses the Court’s ruling on the instructions.” RP (July 15, 2014) at

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121. Both parties agreed the packet included the instructions. The trial court read the packet aloud
to instruct the jury, and still, the Guests did not object. Finally, when the jury posed a question
about the duty of good faith and fair dealing, the Guests still did not realize the mistake or object
to the trial court’s answer to the question.
Therefore, we do not consider the issue because the Guests failed to preserve this issue on
appeal.
IV. CUMULATIVE ERROR—(JUDGMENT AND QUIETING TITLE)
The Guests argue that the cumulative errors in this case denied them a fair trial. We
determined that the trial court did not commit any errors below, thus, the Guests’ arguments
regarding cumulative error are without merit, and we need not consider the issue further.
V. ATTORNEY FEES
The Guests argue that we should award them attorney fees as the prevailing party under
RAP 18.1 and paragraph D of the Easement.10 The Langes argue that the Guests are not entitled
to attorney fees because Washington courts follow the American rule, and the Guests failed to cite
to any legal authority in their argument for attorney fees. Br. of Resp’t at 48.
The Guests did not adequately address the issue of attorney fees in their opening brief
because they failed to cite to any legal authority in support of their argument. RAP 18.1(b).
Nonetheless, the Guests are not the substantially prevailing party on appeal, and they are not
entitled to attorney fees. RAP 14.2; 18.1.
10 The trial court determined on summary judgment that the Easement did not provide for
indemnification in this case, and therefore, this argument has no basis.

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We affirm.
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 in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Johanson, P.J.
Sutton, J.