Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON JACK A. LYONS, No. 89182-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CURTIS REEP, Appellant. HAZELRIGG, C.J. — Curtis Reep appeals from the order of the superior court that granted Jack Lyon’s motion for summary judgment to quiet title to certain real property and issue a writ of ejectment. On appeal, he asserts that the trial court erred when it rejected his counterclaim of adverse possession and determined that he had not established a genuine issue of material fact for trial as to whether his permissive occupation of certain of Jack and Leota Lyons’ marital community property became and remained hostile to their interest therein for a period of at least 10 years. Because Reep fails to establish trial court error, we affirm. No. 89128-1-I/2 FACTS In November 2001, spouses Jack Lyons and Leota Lyons 1 purchased real estate in Tukwila consisting of a single-family dwelling on a residential lot (the Tukwila property), with that real estate becoming part of their community property.2 In 2011, Curtis Reep, Leota’s nephew, began to occupy the Tukwila property and continued to do so through 2025. During that 14-year time period, he did not sign a lease or pay rent to Jack or Leota in exchange for his occupation of that property. 3 Also during that time, Reep maintained and made improvements to the property. Between 2012 and 2015, he engaged in, or directed, painting, landscaping, yard work, tree maintenance and clean-up, house repairs, and grading a portion of the property and installing a paved path for parking. He also irregularly submitted to the City of Tukwila water and electric utility payments for the property. Between 2013 and 2015, Jack expressed to Reep that he wanted Reep to move out of the property and also disapproved of his grading and paving project. About 10 years later, in January 2025, Leota passed away. Five months after that, in May, the personal representative of Leota’s estate granted Leota’s interest in the real property in question to Jack, consistent with her last will and 1 Because they shared the same last name, we refer to Jack and Leota by their first names for clarity. No disrespect is intended. 2 See, e.g., France v. Freeze, 4 Wn.2d 120, 123-24, 102 P.2d 687 (1940) (“[Real] property acquired by [husband] and his wife . . . while married became their community property; that is, one-half of it belonged to each member of the marital community.”). 3 In one of his declarations submitted in the trial court, he stated that he believed that the property was his to occupy and improve. -2- No. 89128-1-I/3 testament. Shortly thereafter, Jack demanded that Reep vacate the property, but Reep did not do so. Three months later, in August, Jack filed a complaint in King County Superior Court, alleging that he was the rightful owner of the property and Reep was unlawfully occupying the property, and requested that the court quiet title to the property and issue a writ of ejectment to remove Reep from the premises. Reep appeared pro se 4 and filed an answer and a counterclaim that argued a cause of action of adverse possession of the property, and Jack filed an answer that disputed Reep’s counterclaim. Jack later filed a summary judgment motion wherein he requested that the court issue orders to quiet title to the Tukwila property and direct the clerk to issue a writ of ejectment. Reep, in response, argued that although he was initially permitted to occupy the Tukwila property, his occupation thereof subsequently became hostile to the Lyons’ interest therein and remained so for a period of at least 10 years. Following a hearing, the trial court granted Jack’s motion and issued his requested orders. Reep timely appealed. ANALYSIS Reep asserts that the trial court erred when it granted Jack’s motion for summary judgment, but he fails to establish trial court error. 4 Reep represents himself on appeal as well. -3- No. 89128-1-I/4 I. Standard of Review We have stated the summary judgment standard of review as follows: We review de novo a trial court’s decision on summary judgment. Boyd v. Sunflower Props. LLC, 197 Wn. App. 137, 142, 389 P.3d 626 (2016). Accordingly, we engage in the same inquiry as the trial court. Green v. Normandy Park Riviera Section Cmty. Club, Inc., 137 Wn. App. 665, 681, 151 P.3d 1038 (2007). Summary judgment is properly granted when “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). “A ‘material fact’ is a fact upon which the outcome of the litigation depends, in whole or in part.” Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974) (quoting CR 56(c)). The party moving for summary judgment bears the initial burden of showing that there is no disputed issue of material fact. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The burden then shifts to the nonmoving party to present evidence that an issue of material fact remains. Young, 112 Wn.2d at 225. This the party may accomplish by submitting affidavits setting forth any facts that would be admissible as evidence and attaching any documents that would be similarly admissible. CR 56(e). The party may also support its position by submitting depositions, answers to interrogatories, and admissions. CR 56(e). When reviewing the affidavits and other evidentiary material, the trial court must construe all evidence and the reasonable inferences therefrom in favor of the nonmoving party. Boyd, 197 Wn. App. at 142 (citing Holmquist v. King County, 182 Wn. App. 200, 207, 328 P.3d 1000 (2014)). Only 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” should summary judgment be granted. CR 56(c). If this standard is not met, the matter must proceed to trial. Haley v. Amazon.com Servs., LLC, 25 Wn. App. 2d 207, 216-17, 522 P.3d 80 (2022). Additionally, CR 56(e) provides that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” (Emphasis added.) “On review, we may -4- No. 89128-1-I/5 affirm summary judgment ‘on any ground supported by the record.’” Scotsman Guide, Inc. v. Simmons, 35 Wn. App. 2d 203, 209, 574 P.3d 584 (2025) (quoting Pac. Marine Ins. Co. v. Dep’t of Revenue, 181 Wn. App. 730, 737, 329 P.3d 101 (2014)). 5 Furthermore, “[we] hold pro se litigants to the same standards as attorneys.” In re Vulnerable Adult Pet. of Winter, 12 Wn. App. 2d 815, 844, 460 P.3d 667 (2020). In so doing, we expect pro se litigants to comply with appellate rules requiring citation to legal authority. State Farm Mut. Auto. Ins. Co. v. Avery, 114 Wn. App. 299, 310, 57 P.3d 300 (2002). Significantly, it is not the function of an appellate court “to comb the record with a view toward constructing arguments for counsel” or self-represented litigants. In re Est. of Lint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998). II. Adverse Possession and Permission To Use Community Property Reep asserts that the trial court erred when it determined that no genuine issue of material fact remained for trial as to whether his occupation of the Tukwila property resulted in his adverse possession thereof. The court erred, Reep avers, because Jack revoked the permission granted to him to reside on that property and because his improvements notified Jack and Leota that he was claiming an interest in that property that was hostile to theirs. Reep does not establish an entitlement to appellate relief. 5 To the extent that Reep assigns error to the trial court having “resolved disputed facts and competing reasonable inferences” against him, we need not further address this assignment of error because our review is de novo. See Haley, 25 Wn. App. 2d at 216. -5- No. 89128-1-I/6 A. Legal Standards It is well known that [i]n 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. Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984). Possession of the property with each of the necessary concurrent elements must exist for the statutorily prescribed period of 10 years. RCW 4.16.020. As the presumption of possession is in the holder of legal title, Peeples v. Port of Bellingham, 93 Wn.2d 766, 773, 613 P.2d 1128 (1980), overruled on other grounds, Chaplin v. Sanders, supra, the party claiming to have adversely possessed the property has the burden of establishing the existence of each element. Skansi v. Novak, 84 Wash. 39, 44, 146 P. 160 (1915), overruled on other grounds, Chaplin v. Sanders, supra. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757-58, 774 P.2d 6 (1989). At summary judgment, and on appeal here, the parties disputed only whether Reep’s possession of the Tukwila property was hostile. As a general matter, we have stated that hostility requires proof that the possessor treated the property as an owner would. Chaplin, 100 Wn.2d at 860-61. But “permission to occupy the land, given by the true title owner to the claimant or [their] predecessors in interest, will still operate to negate the element of hostility.” Id. at 861-62. This qualification means that “a different set of rules applies when the initial use is permissive.” Granston v. Callahan, 52 Wn. App. 288, 293, 759 P.2d 462 (1988) (applying Chaplin analysis to claim of prescriptive easement). Hostility does not mean personal animosity or even adversarial intent. It connotes rather that the claimant’s use has been hostile to the title owner’s, in that the claimant’s use has been that of an owner. See Chaplin, 100 Wn.2d at 857-58. Use with the true owner’s permission thus cannot be use hostile to the true owner’s title. Permission can be express or implied; an inference of permissive use arises when it is reasonable to assume “that the use was permitted by sufferance and acquiescence.” Granston, 52 Wn. App. at 294. Miller v. Anderson, 91 Wn. App. 822, 828, 964 P.2d 365 (1998) (emphasis added). -6- No. 89128-1-I/7 The parties do not meaningfully dispute that at the time that Reep began to occupy the Tukwila property, Jack and Leota were its true title owners, and such property constituted their marital community property. See, e.g., France v. Freeze, 4 Wn.2d 120, 123-24, 102 P.2d 687 (1940) (“[Real] property acquired by [husband] and his wife . . . while married became their community property; that is, one-half of it belonged to each member of the marital community.”). Significantly, with regard to the management, control, and gifting of community property, RCW 26.16.030 sets forth in relevant part as follows: Either spouse or either domestic partner, acting alone, may manage and control community property, with a like power of disposition as the acting spouse or domestic partner has over [their] separate property, except: ... (2) Neither person shall give community property without the express or implied consent of the other. (Emphasis added.) See also In re Marriage of Mueller, 140 Wn. App. 498, 509, 167 P.3d 568 (2007) (“[Spouses] may gift community property as long as they have the express or implied consent of the other.”). The same reasoning logically applies to the revocation of a gift of community property; that a spouse may revoke a gift of community property only if the other spouse consents to do so as well. We can also apply this reasoning to the context of adverse possession and the grant of permission to occupy; in order for a community property gift of permission to occupy community real estate to be valid, both spouses must consent to such a gift. Mueller, 140 Wn. App. at 509; Miller, 91 Wn. App. at 828- 29. The same reasoning would logically apply to revocation of a gift of the right to occupy community property: revocation from both spouses would be required for -7- No. 89128-1-I/8 revocation of such a gift to be effective. Mueller, 140 Wn. App. at 509; Miller, 91 Wn. App. at 828-29. B. Marital Community Did Not Revoke Permission Reep first asserts that a genuine issue of material fact remains for trial as to whether the permission granted to him to occupy the Tukwila property was revoked such that his possession of that property became hostile to the interest of Jack’s and Leota’s marital community therein. We disagree. As a preliminary matter, the record at summary judgment does not set forth a meaningful dispute as to whether the marital community of Jack and Leota Lyons consented to gift to Reep community property in the form of granting him the right to occupy their Tukwila property in 2011. 6 One of Reep’s declarations submitted in the trial court stated that Leota told him that she was gifting the property to him, and Jack’s declaration submitted herein reflected that he “allowed [Reep] to move into the [p]roperty.” 7 Therefore, the record at summary judgment, and the arguments based thereon, reflect that Reep’s occupation of the Tukwila property was a permissive one that resulted from a gift of the right to occupy Jack’s and Leota’s community property asset. 6 We need not determine the precise scope and duration of the gift granted herein in order to resolve the matter before us. 7 We note that one of Reep’s declarations states as follows: “In 2011, when I moved in, Jack told me: ‘If it was up to me, I would tear the place down.’” However, Reep does not present any analysis or decisional authority on appeal in support of establishing how that statement, or any inferences therefrom, would reasonably establish a genuine issue of material fact as to whether Jack did not originally consent to Reep’s occupation of the property. Rather, his primary assignment of error presented on appeal is “whether any original permission ended and whether Mr. Reep’s possession became hostile by 2013 or, alternatively, no later than 2015.” (Emphasis added.) Once again, it is not our role to construct arguments on behalf of litigants. Lint, 135 Wn.2d at 532. -8- No. 89128-1-I/9 Next, taken in the light most favorable to Reep and all reasonable inferences therefrom, the facts presented at summary judgment do not establish a genuine issue of material fact as to whether the marital community subsequently revoked Reep’s permissive occupation of the Tukwila property. Although the record may contain a material fact regarding whether Jack’s conduct toward Reep between 2013 and 2015 constituted a revocation of his permission, such a fact would not lend itself to the creation of a genuine issue at summary judgment; it is Reep’s burden to present evidence to establish the requirement of hostility and the record herein does not contain any evidence that would be admissible at trial that Leota ever engaged in conduct that expressly or impliedly revoked her permission for Reep to occupy the property. 8 Although Reep relies on a portion of Jack’s declaration in which Jack, referring to himself and Leota, stated, “[W]e verbally asked [Reep] if he could find a place to live so that we could sell the home for additional money to pay for Leota’s care,” this does not establish a genuine issue of material fact as to whether Leota herself revoked permission. Indeed, declarations must be based on personal knowledge, and this statement by Jack, despite its phrasing, does not constitute admissible evidence of Leota’s personal knowledge and cannot thereby create a genuine issue of material fact as to this issue. See CR 56(e). 8 Reep asserts that he is entitled to appellate relief because “the record contained no direct evidence that Leota Lyons renewed or confirmed permission after 2013.” However, he misunderstands the burden shifting standard at summary judgment and his own burden to establish his claim of adverse possession. See Haley, 25 Wn. App. 2d at 216-17. When, at summary judgment, Jack showed that there was no evidence to support that Leota revoked her permission, the burden shifted to Reep to show that there was evidence supporting as much. However, Reep did not carry his burden to do so before the trial court and does not do so on appeal. Thus, his assertion fails. -9- No. 89128-1-I/10 Therefore, although whether Jack revoked his permission may be a material fact, in the absence of evidence that Leota revoked her permission, it does not create a genuine issue of material fact regarding revocation of the marital community. Accordingly, Reep does not show that a genuine issue of material fact remained for trial as to whether the permission to occupy the Tukwila property as originally given by Jack and Leota’s marital community was revoked such that his occupation thereof became hostile to their property interest. C. Conduct Toward Property Did Not Change Its Permitted Use Reep next asserts that his grading and paving project on the property changed its use such that the project placed Jack and Leota on notice that he was acting toward the Tukwila property in a manner hostile to their interest in that property. We disagree. Here, taken in the light most favorable to Reep as the nonmoving party and all reasonable inferences therefrom, the record at summary judgment reflects that he was granted permission to occupy the Lyons’ residential lot in Tukwila that contained a single-family home. He subsequently resided in and used the property as if it were his residence and, while there, initiated and completed a project that resulted in the installation of a slab of concrete used for parking next to the residence. The foregoing does not establish a genuine issue of material fact as to hostility. The Lyons gifted to Reep a right to occupy a single family residence and, although not insignificant in scale, the installation of a paved parking area adjacent to a single-family dwelling is consistent with the permission granted to him by the - 10 - No. 89128-1-I/11 Lyons to reside there rent free. 9 Thus, he does not show that a genuine issue of material fact remained for trial as to whether his project constituted a hostile use of their property. Accordingly, Reep does not establish that the trial court erred when it granted Jack’s motion for summary judgment, quieted title to the property in question, and directed the clerk to issue a writ of ejectment. Affirmed. WE CONCUR: 9 Although Reep again emphasizes that Jack did not approve of such an installation, as analyzed supra, this is insufficient by itself to establish a genuine issue of material fact as to whether Jack and Leota’s marital community revoked their grant of permission to Reep occupy their community property. Furthermore, to the extent that he relies on his other maintenance and improvements to the property, such uses are similarly consistent with residential use and therefore do not establish a genuine issue of material fact for trial on the basis presented by Reep. - 11 -