Haley appeals the trial court's summary judgment
dismissal of his claim that Kathleen Hume violated their
statutory warranty deed by abandoning an easement prior to
selling her property to Haley. Haley also appeals the trial
court's summary judgment dismissal of his claim against
First American Title Insurance Company (First American) for
failing to defend.
the statute of limitations has run on Haley's warranty
claims, the trial court correctly dismissed Haley's
claims against Hume. Because general exception 3 in the title
insurance policy applies, the trial court also correctly
dismissed Haley's claims against First American. Finally,
the trial court did not err in denying Hume's motion for
an award of attorney fees and sanctions. We affirm.
case concerns Lot B of Mercer Island Short Plat No.
MI-78-4-018, and an easement located on the adjacent open
space Tract A. At issue is the 2005 sale of Lot B by Hume to
Haley, and specifically whether Haley purchased the right to
ingress, egress, and park, on the easement in Tract A. The
following is a not-to-scale representation of the properties
1979, the owner of Tract A granted a 10-foot-wide and
140-foot long easement along the southern edge of Tract A to
the owners of Lot B for utilities, vehicular and pedestrian
ingress and egress, and parking. The easement was necessary
to provide access over a paved road on Tract A to Lots C and
D. Persons accessing Lots C and D would cut across the Lot B
driveway and proceed on the paved access road on Tract A to
reach their properties.
September 6, 2000, Hume purchased Lot B. In 2001, John Pugh
purchased Lot D and Tract A. In 2001, Pugh applied for a
variance and permit from the City of Mercer Island to remove
approximately 95 linear feet of the underground culvert on
Tract A and expose, or daylight, that portion of the stream
connecting to Lake Washington. The application also sought to
remove the entire access driveway in the easement area on
Tract A and to install a new driveway access serving Lots C
and D on the north side of Tract A. The new driveway was
located outside of the required 75-foot stream setback and
included a bridge over the open stream. The plans included
significant landscaping improvements, shade trees, and an
18-inch high rockery along the sides of the stream channel.
same time, Pugh approached Hume with his proposed plan for
improvements on Tract A. Hume agreed to Pugh's plan
because it eliminated the need for vehicles and pedestrians
to cut across her driveway. Hume also believed that
Pugh's plan created additional privacy and safety to her
property, was a visual improvement, and added value to her
home. Hume agreed to abandon a portion of the easement in
the City of Mercer Island approved Pugh's variance and
permit, he removed the paved access road on Tract A, opened
the culvert to create an open stream with an 18-inch high
rockery along the sides of the channel, and planted trees and
other landscaping. The opening of the stream corridor and the
removal of the previous access road in the easement area made
it impossible for vehicles or pedestrians to use the easement
area for ingress, egress, or parking. Hume conceded that
after 2001, no surface use of the easement was possible and
she abandoned any claim of easement rights in Tract A with
the exception of easement rights for underground utilities
serving Lot B. All of the improvements to the stream and
Tract A were completed in late 2003 and early 2004.
2005, Haley purchased Lot B by statutory warranty deed from
Hume. In connection with the purchase, Haley obtained a title
insurance policy from Pacific Northwest Title Insurance
Company, Inc., the predecessor of First
2012, Haley discovered the original easement on Tract A.
Haley asked Pugh for permission to build a pedestrian bridge
over the steam and widen his driveway into the easement area
for additional parking. Pugh refused this request and
informed Haley that Hume had previously abandoned the
easement. Haley filed suit against Pugh, and Pugh
counterclaimed against Haley to quiet title to the easement.
During litigation, Pugh submitted a declaration from Hume
that admitted she had consented to the improvements to the
easement area and was aware that the improvements were an
abandonment of her easement rights.
trial court granted summary judgment in favor of Pugh
declaring that Hume abandoned the easement except the rights
to utility, sewage, and drainage to the extent those
utilities served Haley's property. This court affirmed
the trial court in an unpublished decision. Haley v.
Pugh, No. 70649-7-I (Wash.Ct.App. Oct. 27, 2014)
November 26, 2012, prior to the trial court's final
decision on summary judgment, Haley tendered his defense to
First American. First American rejected Haley's tender of
December 21, 2016, Haley filed suit against Hume and First
American. Haley asserted that by abandoning the easement Hume
violated the statutory warranties included in their deed.
Haley also asserted that First American acted in bad faith
when it denied Haley's tender of defense, and that First
American's conduct amounted to a breach of the Consumer
Protection Act, ch. 19.86 RCW. First American filed a
counterclaim against Haley seeking a declaratory judgment
that it owed no duty to defend Haley.
October 2017, each party moved for summary judgment. Hume
also requested her attorney fees and costs and asked the
court to sanction Haley under CR 11 and RCW 4.84.185. On
November 3, 2017, the trial court denied Haley's motion,
granted Hume's motion, and denied Hume's request for
attorney fees and costs. On November 6, 2017, the trial court
granted First American's motion and dismissed the case.
Haley appeals both orders.
first contends that the trial court erred in dismissing
Haley's claims against Hume for her breach of present and
future warranties. We disagree.
review summary judgment decisions de novo and engage in the
same inquiry as the trial court. Mastro v. Kumakichi
Corp., 90 Wn.App. 157, 162, 951 P.2d 817 (1998).
"Summary judgment is appropriate only where there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law."
Mastro, 90 Wn.App. at 157 (citing CR 56(c)).
"All facts and reasonable inferences therefrom must be
viewed in the light most favorable to the nonmoving
party." Post v. City of Tacoma, 167
Wn.2d 300, 308, 217 P.3d 1179 (2009).
statutory warranty deed provides five guarantees against
(1) that the grantor was seised of an estate in fee simple
(warranty of seisin); (2) that he had a good right to convey
that estate (warranty of right to convey); (3) that title was
free of encumbrances (warranty against encumbrances); (4)
that the grantee, his heirs and assigns, will have quiet
possession (warranty of quiet possession); and (5) that the
grantor will defend the grantee's title (warranty to
Mastro, 90 Wn.App. at 162 (quoting 17 William B.
Stoebuck, Washington Practice: Real Estate: Property Law
§ 7.2, at 447 (1995)). The warranties of seisin, the
right to convey, and against encumbrances, are present
covenants. Present covenants are breached, if at all, at the
time of conveyance. Double L Properties, Inc. v.
Crandall, 51 Wn.App. 149, 152, 751 P.2d 1208(1988). The
warranties of quiet enjoyment and to defend are future
covenants. "These covenants are generally breached after
conveyance, when a third party asserts a claim to the
property." Rowe v. Klein, 2 Wn.App. 2d 326,
329, 409 P.3d 1152 (2018). The statute of limitations for an
action based on contract or written agreement, including
breach of a statutory warranty deed, is six years. RCW
4.16.040(1); Erickson v. Chase, 156 Wn.App. 151, 231
P.3d 1261 (2010); Whatcom Timber Co. v. Wright, 102
Wash. 566, 568, 173 P. 724 (1918).
first address Haley's claim that Hume breached the
present covenants. Haley does not dispute that more than six
years have elapsed since the 2005 warranty deed conveyance.
Haley instead argues that the discovery rule should apply.
The discovery rule is "a rule for determining when a
cause of action accrues and the statute of limitations
commences to run." 1000 Virginia Ltd. Partnership v.
Vertecs Corp., 158 Wn.2d 566, 587, 146 P.3d 423 (2006).
Haley argues that because Hume concealed the fact that she
abandoned the easement until 2012, it was impossible for him