Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED

                                                                            FEB 2, 2012

                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CHRISTOPHER G. BUTLER and                                 No.  29198-7-III
KERRI S. BUTLER, husband and wife,              )         (consolidated with
                                                )          No.  29517-6-III)
                      Respondents,              )
                                                )         Division Three
       v.                                       )
                                                )
SANDRA COYLE, a single person,                  )
                                                )         UNPUBLISHED OPINION
                      Appellant.                )
                                                )

       Siddoway, J.  --  Sandra Coyle appeals the trial court's entry of a judgment 

reforming deeds and an easement to make clear that her neighbors partially own and have 

the right to use a road that Ms. Coyle attempted to close to their use.  We affirm the trial 

court's judgment and, in a consolidated matter, affirm the trial court's order finding Ms. 

Coyle in contempt for interfering with survey work required by the court's judgment.  

While we deny Christopher and Kerri Butler's request for an award of fees and costs 

incurred in the appeal, we grant their motion for terms for Ms. Coyle's failure to appear  

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

at the time set for oral argument.

                      FACTS AND PROCEDURAL BACKGROUND

       Sandra Coyle owns real property located on Corkscrew Canyon Road in 

Tum Tum, Washington.  Christopher and Kerri Butler own neighboring property on 

Corkscrew Canyon Road immediately adjacent to and southeast of Ms. Coyle's property.  

Both Ms. Coyle and the Butlers trace their title back to a common grantor, Reforestation 

Inc., which acquired both properties in June 1967.  In October 1967, Reforestation

entered into an unrecorded contract to sell what became the Butler property to Paul E. 

Parker and Janet J. Parker; a fulfillment statutory warranty deed transferring title to the 

Parkers was recorded in January 1974. In 1968, Reforestation entered into a contract to 

sell what became the Coyle property to George B. Woodbury and Joanne L. Woodbury; 

like the Parker fulfillment deed, the fulfillment statutory warranty deed transferring title 
to the Woodburys was recorded in January 1974.1  We refer to these initial conveyances, 

by their recording dates, as the 1974 deeds or conveyances.

       1 The Butlers' evidence established that the Parkers conveyed the Butler property 
by statutory warranty deed to Neumann, Neumann quitclaimed to Potter, Potter 
quitclaimed to Peone, and the Butlers acquired title through a statutory warranty deed 
from Peone.  Exs. 7-10.  Evidence established that the Woodburys conveyed the Coyle 
property by statutory warranty deed to Fifield, and that Ms. Coyle acquired title through a 
statutory warranty deed from Fifield.  Exs. 12-14.  The portions of the legal description 
and reservations that are relevant to this dispute were the same or substantively equivalent 
in each conveyance.

                                               2 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

       The 1974 conveyances by Reforestation of the Butler and Coyle properties to the 

Parkers and the Woodburys identified the boundary line between the properties as the 

       center line of present lane road, the center line of which is described as 
       follows:  Commencing at a point on the North line of said Lot 4, which is 
       S89º 29' E., 941.25 feet from the NorthWest corner of said Lot 4, thence 
       South 26º 11' 54" West 410.93 feet; thence South 52º 28' 59" West, 340.6 
       feet to the center of LaPray-Bridge Road No. 590, and reserving to the 
       vendor, its successors or assigns easement and rights of way over prior and 
       existing roads and easement for utilities.  

Ex. 5; see also Ex. 11.  LaPray-Bridge Road is an earlier name for what is now more 

commonly called Corkscrew Canyon Road.  At trial, the parties stipulated that the 

"present lane road" referenced in the legal description, a dirt road currently used as a 

driveway by the Butlers, has been in the same location since 1961.  

       In addition to the rights in the road created by the deeds' description of the center 

line as a boundary and the deeds' reservation of rights-of-way over prior and existing 

roads to Reforestation's successors, Reforestation executed and recorded an easement in 

1973 that provided for 

       ingress and egress, over and across all roads presently existing or heretofore 
       reserved by the grantor herein in deeds executed and to be placed of record, 
       or already of record within the above described property.  Said easement to 
       be for the benefit of and appurtenant to each and every part of the subject 
       legal description.

Ex. 4. An inconsistency in identifying the properties benefitted and burdened by the 

easement appears on the face of the easement document.  A map is attached, which the 

                                               3 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

document expressly states is its more particular description of the affected properties.  Id.  

The caption on the first page of the easement document states "BB Property" in its upper 

left-hand corner and the parcels depicted on the attached map -- all of which are located 

within the west half of section 5 -- are designated by number, with the prefix "BB."  Id.  

The Coyle property is identified on the map as BB-4 and the Butler property is identified 

on the map as BB-3.  Nonetheless, the legal description set forth on the first page of the 

easement describes the affected properties as situated in "[t]he East Half . . . of Section 

5," despite the fact that the map does not depict any properties located in the east half of 

section 5.  Id. (emphasis added).  

       The record suggests that for some 35 years following the recording of this 1973 

easement and the 1974 deeds neither the internally-inconsistent easement document nor 

the description of the boundary between the properties gave rise to any difficulties 

between the owners of the properties.  The Butlers purchased their property on 

Corkscrew Canyon Road in July 2004.  

       In the spring of 2007, Ms. Coyle purchased her property and in October 2007 
hired Todd J. Emerson, PLS,2 to survey the boundary line between her property and the 

Butler property in anticipation of erecting a fence.  In preparing his survey, Mr. Emerson 

       2 Registration as a professional land surveyor (PLS) in Washington is addressed by 
chapter 18.43 RCW and Title 196 WAC.

                                               4 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

discovered a discrepancy between the location of the existing center line of the lane road 

and the metes and bounds description of that center line set forth in the Butler and Coyle 

deeds, as depicted in the following map: 

Clerk's Papers (CP) at 211 (digital alterations ours). In his survey, which Mr. Emerson

                                               5 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

recorded in February 2008, he based the boundary line between the properties on the 

metes and bounds description of the road center line rather than its actual center line.  

Acting on the recorded survey, Ms. Coyle began fencing in what she contended was her 

land in April 2008.  Her construction of the fence eventually cut off the Butlers' access to 

their property by enclosing the lane road.  The Butlers filed a complaint for declaratory 

relief, reformation, slander of title, and injunctive relief in July 2008 and obtained a 

preliminary injunction requiring Ms. Coyle to remove the fence pending the outcome of 

the lawsuit.  

       Both Mr. Emerson and Thomas Todd, PLS, the Butlers' expert, testified at trial.  

The discrepancy between the metes and bounds description of the road center line and its 

actual center line was undisputed.  Mr. Emerson testified that the discrepancy created an 

ambiguity that he disclosed to Ms. Coyle and the Butlers, hoping to get their agreement to 

a boundary line that could be formally established through a boundary line adjustment.  

He testified that he surveyed the center line of the road on the ground and suggested it as 

an agreed boundary, acknowledging that it might have been the intended boundary at the 

time of the original conveyance by Reforestation.  When Ms. Coyle and the Butlers did 

not reach agreement on a boundary line, he recorded his survey.  At trial, he could 

identify no reason why he relied on the metes and bounds description from the deeds 

rather than the actual center line in depicting the boundary line between the Coyle and 

                                               6 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

Butler properties.  

       Mr. Todd testified that in his opinion, Mr. Emerson's survey should have reflected 

the actual center line of the road as the boundary, because the road, being a monument, 

ordinarily takes precedence over an inconsistent metes and bounds description in a deed.  

Mr. Todd also offered an explanation for the discrepancy between the metes and bounds 

description and the actual center line: he concluded that the starting point for the course 

and distance measurements had been different. Both surveyors testified that Mr. Emerson 

relied for his survey on a northwest corner of section 5 that had been reestablished by

surveyor Scott Valentine in 1982, after having earlier been lost. Both surveyors agreed 

that the metes and bounds description in the 1974 Reforestation deeds was almost 

certainly based on a survey, given its measurements to within a hundredth of a foot, 

although no record of the survey remained.  Mr. Todd testified that it was improbable that

Mr. Valentine had reestablished the northwest corner at precisely the same point as its 

earlier location.  In reviewing Mr. Emerson's work, Mr. Todd noticed that the boundary 

line based on the metes and bounds description did not terminate at the center of 

Corkscrew Canyon Road, as it should have by its terms (the last call being "thence South 

52º 28' 59" West, 340.6 feet to the center of LaPray-Bridge Road No. 590"). Exs. 5, 11.  

Mr. Todd's research revealed that the center of LaPray-Bridge Road, now Corkscrew 

Canyon Road, had not changed.  By moving the terminus of Mr. Emerson's boundary 

                                               7 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

line so that it would fall in the center of Corkscrew Canyon Road and then adjusting the 

point of beginning to keep it on the true north line of section 5, Mr. Todd found that the 

entire boundary line shifted northwesterly approximately 32 feet, coming into alignment

with the actual center line of the road.  From this, Mr. Todd concluded that whoever 

prepared the metes and bounds description used in the 1974 deeds surveyed the same 

center line existing on the ground today, but relied on a northwest corner of section 5 that 

was about 32 feet to the east of the corner reestablished in 1982 by Mr. Valentine.

       When asked about Reforestation's easement prepared and recorded in 1973, Mr. 

Todd testified that it made no sense unless it was intended to refer to the properties that 

were depicted on its attached map, and which were located in the west half, not the east 

half, of section 5.  

       After hearing the evidence presented by the parties, the trial court entered findings, 

conclusions, and a judgment reforming the parties' deeds to establish that the boundary 

line between the Butler and Coyle properties was the actual center line of the lane road, 

reforming the easement for what it found to be a scrivener's error, and finding that Ms. 

Coyle had committed common law trespass.  During trial, Ms. Coyle had testified that if 

the trial court established the center line of the road as a boundary, she would build a

fence down the middle of the road, so the trial court also granted a permanent injunction 

preventing Ms. Coyle from interfering with the Butlers' use of the easement.  Ms. Coyle 

                                               8 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

retained new counsel and filed a motion for reconsideration, which was denied. She 

timely appealed.  

       Postjudgment, the Butlers moved for a contempt order against Ms. Coyle, 

demonstrating that she was violating the court's injunction and preventing preparation of 

a new survey, which was one aspect of the relief ordered by the court.  The trial court 

found Ms. Coyle in contempt and entered judgment against her for the terms and fees 

imposed.  Ms. Coyle timely appealed that order and judgment, which we consolidated 

with her initial appeal.  

                                         ANALYSIS

                                               I

       The Butlers argue that many of Ms. Coyle's assignments of error improperly raise 

issues for the first time on appeal, are insufficiently supported by argument or reference 

to the record as required by the rules on appeal, or are otherwise improper.  We agree and 

first address the assignments of error that we will not consider for reasons that are well-
settled in the case law or under our rules.3

       RAP 2.5(a) and the Collateral Bar Rule Preclude Review of Assignments of Error 
       1, 2, 3, 4, 7, 8, 9, 10, and 17

       3 Ms. Coyle represents herself in this appeal.  As a pro se litigant, Ms. Coyle is 
held to the same standard as an attorney and must comply with all procedural rules on 
appeal.  Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 
(1997); In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).  

                                               9 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

       Generally, appellate courts will not entertain issues raised for the first time on 

appeal.  RAP 2.5(a); Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 441, 191 

P.3d 879 (2008).  The reason for this rule is to afford the trial court the opportunity to 

correct errors, thereby avoiding unnecessary appeals and retrials.  Smith v. Shannon, 100 

Wn.2d 26, 37, 666 P.2d 351 (1983).  We likewise do not consider theories not presented 

below.  John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 780, 819 P.2d 370 (1991).  

       New theories presented for the first time to the trial court as part of a motion for 

reconsideration need not be considered, Wilcox v. Lexington Eye Inst., 130 Wn. App. 

234, 241, 122 P.3d 729 (2005), review denied, 157 Wn.2d 1022 (2006); Int'l Raceway, 

Inc. v. JDFJ Corp., 97 Wn. App. 1, 7, 970 P.2d 343 (1999), and the same holds true for 

arguments raised for the first time in an appellant's reply brief, Cowiche Canyon 

Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).  A party generally 

cannot raise new grounds challenging the propriety of an underlying court order during a 

contempt proceeding under the collateral bar rule.  In re Det. of Broer, 93 Wn. App. 852, 

858, 957 P.2d 281, 973 P.2d 1074 (1998), review denied, 138 Wn.2d 1014 (1999).  

       Ms. Coyle's following assignments of error are not entitled to review based upon 

these principles:

       Ms. Coyle's first assignment of error alleges that she was a bona fide purchaser.  

This case involves a boundary line described in Ms. Coyle's deed, an easement of which 

                                               10 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

she had notice, and a road actively being used by the Butlers, making it unlikely that she 

could viably claim to be a bona fide purchaser without notice.  In any event, the theory 

was not presented until Ms. Coyle's motion for reconsideration and we will not consider 

it.  

       Her second assignment of error alleges that portions of Mr. Todd's testimony 

lacked sufficient foundation.  No such evidentiary challenge was made below and we 

need not consider it.

       Her third assignment of error alleging that the Butlers' suit was brought in 

violation of the statute of limitations reveals a lack of understanding of when a cause of 

action accrues.  As a threshold matter, however, it was not raised until her pro se 

response to contempt proceedings and is both untimely and a prohibited collateral attack 

on the underlying order.  

       Her fourth assignment of error alleging that the trial court failed to observe the 

requirements of chapter 58.04 RCW pertaining to lost or uncertain boundary lines has no 
application to this case,4 and again, was not raised below.

       Assignments of error 7, 9, and 10, pertaining to the validity of the 1973 easement, 

       4 Provisions of RCW 58.04.020 relative to establishing lost boundaries in property 
disputes are inapplicable to situations where parties contend that different, existing 
boundaries are the true division line. Stewart v. Hoffman, 64 Wn.2d 37, 390 P.2d 553
(1964).

                                               11 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

and 8 and 17, pertaining to an alleged failure on the part of the Butlers to amend their 

pleadings to request relief, fail for the same reasons.  

       Ms. Coyle for the first time on appeal also makes several groundless arguments 

under irrelevant state and federal constitutional and statutory provisions that appear

throughout her briefing.  These include assertions that the trial court's reformation of the 

deeds violated the statute of frauds, that the trial court unlawfully deprived her of several 

constitutional rights in violation of 18 U.S.C. §§ 241-42, and that this court should 

prosecute opposing counsel on perjury and forgery charges.  Br. of Appellant at 35, 37-

38, 50.  These arguments are as untimely as they are meritless and will not be considered.

       Insufficient Argument Precludes Review of Assignments of Error 5, 11, 12, 13, 14, 
       a portion of 15, 16, 20, 21, and 22

       Our rules require Ms. Coyle to support each of her assignments of error with 

appropriate argument and citations to the record.  Failure to do so for an assignment of 

error waives the assignment.  RAP 10.3(a)(5)-(6); Milligan v. Thompson, 110 Wn. App. 

628, 635, 42 P.3d 418 (2002); Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 

P.2d 290 (noting that "[p]assing treatment of an issue or lack of reasoned argument is 

insufficient to merit judicial consideration"), review denied, 136 Wn.2d 1015 (1998); In 

re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998) (concluding that "[i]t is 

incumbent on counsel to present the court with argument as to why specific findings of 

                                               12 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

the trial court are not supported by the evidence and to cite to the record to support that 

argument"); In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) ("'[N]aked castings 

into the constitutional sea are not sufficient to command judicial consideration and 

discussion.'" (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970), 

cert. denied, 401 U.S. 917 (1971))).

       Even construing Ms. Coyle's brief in the most charitable light, the following

assignments of error are so lacking in reasoned argument and citation to the record that 

we would have to guess at reasoning that might support them, something we will not do:

       Assignment of error 5 alleges that the trial court erred in finding that Mr. 

Valentine's re-establishment of the northwest section corner was 32 feet off, but Ms. 

Coyle's argument is not supported by adequate argument.  The substance of her argument 

primarily reiterates assignment of error 2.

       Assignments 11 and 12, which challenge the admission of an aerial photograph of 

the properties with an allegedly forged date, are not supported by any argument that can 

be considered.  

       Assignment 13 contests the trial court's finding that a handwritten date appearing

on a photograph existed on the photograph when obtained by opposing counsel and was 

not forged by him or at his direction.  Rather than argue from the evidence, Ms. Coyle 

claims that this finding interfered with investigation by the Washington State Bar 

                                               13 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

Association of a complaint she filed based on the photo.  The state bar association has no

primary jurisdiction to determine the issue, which was properly resolved by the court; 

moreover, the bar association had deferred the processing of Ms. Coyle's complaint 

pending resolution of the action below.  

       Assignment 14, which complains of a lengthy delay in the entry of findings below, 

is not supported by any citation to the record evidencing a delay.  

       Assignment 15 is likewise unreviewable insofar as it pertains to her contention that 

the trial court erred by finding that the 1973 easement burdens her property.

       Assignment 16 alleges that the trial court erred by finding common law trespass, 

based on the trial court's reference at trial to the trespass supporting nominal recovery, 

but it is completely devoid of meaningful argument.

       Assignment 20 simply asserts that the trial court erred by not reconsidering its 

decision in this matter.  The argument supporting this assignment of error is cumulative 

and need not be separately addressed.

       Assignment 21 raises a First Amendment challenge and service of process issues 

without any accompanying argument.

       Assignment 22 is supported by no relevant authority in claiming that the trial 

court's order for issuance of a writ of restitution was improperly granted.

       Based upon a careful review of Ms. Coyle's briefing, only four of her assignments 

                                               14 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

of error sufficiently raise issues warranting review.  Restated for purposes of clarity, they 

are:

       1.  Assignment of error 15:  Whether substantial evidence supports certain portions 
       of the trial court's findings.  

       2.  Assignment of error 19:  Whether the center line of the present lane road can 
       constitute a monument for surveying purposes because it allegedly cannot be 
       mathematically ascertained from the recorded deeds.  

       3.  Assignment of error 6:  If the center line of the present lane road constitutes a 
       monument, whether the trial court erred by giving priority to the monument call in 
       the deeds over the metes and bounds call.  

       4.  Assignment of error 18:  Whether Ms. Coyle is entitled to any relief as a result 
       of an allegedly deficient first page of the judgment summary as specified by RCW 
       4.64.030.  

                                               II

       We understand Ms. Coyle's assignment of error 15 to contend that substantial 

evidence does not support certain of the trial court's findings.  She adequately presents 

only two challenges:  she contends, first, that when reciting the contents of the deeds at 

issue, the trial court's finding of fact 1.1 includes language not included in those 

documents and, second, that there was no evidence the 1973 easement contained a

scrivener's error as determined by the court's finding of fact 3.3.  

       We review whether substantial evidence supports the trial court's factual findings 

and then review, de novo, whether the trial court's conclusions of law flow from the 

supported findings.  Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 

                                               15 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

(1999).  Substantial evidence will support a finding when the evidence in the record is 

sufficient to persuade a rational, fair-minded person that the finding is true.  Wenatchee 

Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).  "A 

challenge to the sufficiency of the evidence admits the truth of [the opposing party's] 

evidence and any inference drawn therefrom and requires that the evidence be viewed in 

a light most favorable to [the opposing party]."  Bott v. Rockwell Int'l, 80 Wn. App. 326, 

332, 908 P.2d 909 (1996).  Credibility determinations are solely for the trier of fact and 

cannot be reviewed on appeal.  Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 

(2003).  

       Ms. Coyle complains that the trial court erred when reciting the contents of the 

Butler deed in its finding 1.1, by adding specific language referring to an easement for 

ingress and egress that is not included in that document.  Br. of Appellant at 43.  

Although the formatting of the finding could suggest that all of the language set off by 

indentation came from a single document, the text of the finding explicitly cites to 

exhibits other than the deed.  When read, the substance of the finding is supported by the 

evidence and is not misleading.

       Next, Ms. Coyle contests the trial court's finding that the 1973 easement contained 

a scrivener's error mistakenly describing the subject properties as being located in the 

eastern half of section 5, rather than the western half.  Read in its entirety, the easement 

                                               16 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

document itself, considered in the light of the surrounding circumstances and the situation 

of the parties, was sufficient support for the finding.  The trial court was justified in 

inferring from those matters that the easement's single inconsistency was a drafting error.  

See Maxwell v. Maxwell, 12 Wn.2d 589, 599, 123 P.2d 335 (1942) (notwithstanding 

drafting error, "the correct real property description expressive of the intention of the 

parties can readily be determined").  In addition, the court was presented with the 

following testimony of Mr. Todd:

       Q      And do you see any conflicts between the legal description and the 
              map?
       A      The legal description says the east half of Section 5 and we're 
              working in the west half.
       . . . .
       Q      The -- When it says "east half of Section 5 except for the east half of 
              the northeast quarter of the northwest quarter," does that make any 
              sense?
       A      No.
       Q      Okay.  How would it have to read for it to make sense?
       A      I think -- It would have to be the west half of Section 5.
       Q      Now if we make that the west half of Section 5 does the map that's 
              attached make sense?
       A      Yes, it does.
       Q      And so, if we make that the west half then the exception that is 
              written -- written into there, would that be that rectangular portion 
              about where it says "County Road" on the map?
       A      Yes.
       Q      Okay.  So if this document were revised to say "West half of Section 
              5" instead of "East half of Section 5" then the map attached makes 
              sense?
       A      Yes, sir.

                                               17 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

Report of Proceedings at 79-80.

       The two findings of the trial court that are adequately challenged by Ms. Coyle are 

supported by substantial evidence.

                                               III

       The crux of Ms. Coyle's appeal appears to be the issues we glean from her 

assignments of error 19 and 6, which we address next: whether the present lane road was 

properly recognized as a monument by the trial court for purposes of the boundary line 

dispute and, if so, whether the actual center line of that road was entitled to more weight 

in determining the boundary than the conflicting metes and bounds description contained 

in the recorded deeds. 

       For surveying purposes, a monument is a permanent natural or artificial object on 

the ground that helps establish the location of the boundary line called for.  DD&L, Inc. 

v. Burgess, 51 Wn. App. 329, 331 n.3, 753 P.2d 561 (1988).  Natural monuments include 

such objects as mountains, streams, or trees, while artificial monuments consist of marked 

lines, stakes, roads, fences, or other objects placed on the ground.  Id.  If the monument 

has width, the general rule is that the boundary is the center line of the monument.  Id.  

       Relying on Kesinger v. Logan, 113 Wn.2d 320, 779 P.2d 263 (1989), Ms. Coyle 

argues that the center line of the present lane road cannot constitute a monument because

"[a] location referenced in a deed is not a monument unless it is capable of being 

                                               18 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

mathematically ascertained from the deeds on record." Br. of Appellant at 11.  But all 

that is required by Washington cases in this respect is that the monument be "'a point 

capable of being mathematically ascertained.'"  Kesinger, 113 Wn.2d at 329 (quoting 

Matthews v. Parker, 163 Wash. 10, 15, 299 P. 354 (1931)).  Ms. Coyle introduces the 

concept that it must be mathematically ascertainable "from the deeds on record." Her 

suggested gloss makes no sense; a requirement that the surveyed position of a monument 

must be determinable from deeds on record would defeat the purpose of calling to a 

monument in the first place.  Ms. Coyle's position is contrary to explicit Washington case 

law; in Matthews, the court recognized that monuments need only be capable of "be[ing]

mathematically established upon the ground." 163 Wash. at 15.

       The decision in Kesinger does not support Ms. Coyle's position. In that case, the 

court treated a metes and bounds description as controlling even though it referred to and

purported to account for a canal company's historic right-of-way; the canal company 

argued that its alleged 50-foot right-of-way was a monument and, since the right-of-way 

was mentioned in Ms. Kesinger's deed, it took precedence over the metes and bounds 

description allowing for only a 20-foot right-of-way.  But unlike the road in this case, the 

canal company's right-of-way could not be seen and surveyed on the ground; it existed, if 

at all, only in legal acts of conveyance or reservation -- and there was no conveyance 

establishing a 50-foot width for the right-of-way.  The canal's claimed right-of-way could 

                                               19 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

not be mathematically ascertained because of the lack of a conveyance establishing 

essential information: its width.  113 Wn.2d at 329.  In this case, Mr. Todd testified that 

the center line of the present lane road could be mathematically ascertained and Mr. 

Emerson proved that it could, by surveying the center line without difficulty.  The trial 

court had an ample basis for finding that the center line of the present lane road is a valid 
monument for purposes of describing a boundary.5

       Ms. Coyle also argues that even if the present lane road is a valid monument, the 

trial court erred by giving it priority over the metes and bounds description of the 

boundary line in the deeds.  In cases of conflicting calls in a deed, "the priority of calls is: 

(1) lines actually run in the field, (2) natural monuments, (3) artificial monuments, (4) 

courses, (5) distances, (6) quantity or area."  DD&L, 51 Wn. App. at 335-36; see also

Bullock v. Yakima Valley Transp. Co., 108 Wash. 413, 417, 184 P. 641, adhered to on 

reh'g, 187 P. 410 (1919) (holding that "[i]t is a well established rule of law that 

description by monuments will control over description by metes and bounds").  

       In Ray v. King County, 120 Wn. App. 564, 592, 86 P.3d 183, review denied, 152 

       5 Ms. Coyle's argument that the road cannot be considered a monument because it 
has shifted over time and is therefore not permanent is precluded since the parties 
stipulated that the road had not shifted since 1961.  Further, this argument was not raised 
until her reply brief and is therefore untimely.  Reply Br. of Appellant at 14.  Finally, the 
Butlers offered photographs and testimony sufficient to support a finding that the road 
had not moved.

                                               20 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

Wn.2d 1027 (2004), the court addressed similar conflicting elements in a deed and

applied the general rule as to their precedence. The deed at issue in Ray described the 

location of a railroad right-of-way as follows:

              "Such right of way strip to be fifty (50) feet in width on each side of 
       the center line of the railway track . . . which location is described as 
       follows to-wit.  
              Commencing at a point 410 feet West from North East corner of 
       Section six (6) township 24 N R 6 East and running thence on a one (1) 
       degree curve to the left for 753 3/10 feet thence South 16 degrees and 34 
       minutes West 774 2/10 feet thence with a 3 degree curve to the right for 
       700 feet . . . thence S 36° 15' W 150 feet to South boundary of lot 3 of said 
       Sec 6 which point is 1320 feet North and 2170 feet west from SE corner of 
       said Sec 6."

120 Wn. App. at 572 (emphasis added).  The course and distance description of the

center line of the railway track did not match the actual location of the center line on the 

land.  Id. at 592. The court held that "because the monument" -- the railroad 

tracks -- "controls over the distance calls, we hold that the strip of land conveyed in this 

deed is centered on the railroad tracks, as constructed."  Id.  The trial court in this case 

was presented with similar evidence, reasonably leading to its conclusion that the 

boundary line must be controlled by the location of the road on the ground.  

       Ms. Coyle ignores these cases dealing with the relative weight given conflicting 

calls in favor of a different rule of construction:  she relies on a more general rule that 

"'"[w]here a particular and general description in a deed conflict, and are repugnant to 

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Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

each other, the particular will prevail unless the intent of the parties is otherwise 

manifested on the face of the instrument."'" Br. of Appellant at 25 (quoting Stockwell v. 

Gibbons, 58 Wn.2d 391, 397, 363 P.2d 111 (1961) (quoting Annotation, Rule That 

Particular Description in Deed Prevails Over General Description, 72 A.L.R. 410, 

§ II(a) (1931))). Ms. Coyle submits that the metes and bounds description of the center 

line is a particular description, which prevails over the deed's direct reference to the 

center line, which she characterizes as a general description.  

       Two responses are in order.  First, Washington precedents establishing the 

principle of construction that applies to the specific conflict in this case -- monument calls 

versus metes and bounds calls -- control over Washington precedents establishing more 

general rules of construction.  Second, the "particular versus general description"

principle relied upon by Ms. Coyle applies only when the two conflicting descriptions are 

independent efforts directed at describing a third thing -- the boundary.  It does not apply 

where, as here, the purpose of the "particular" metes and bounds description is to more 

precisely identify the location of the "general" description: the monument.  Notably, the 

A.L.R. annotation on which Ms. Coyle indirectly relies states that "[w]here a general 

description is followed by a particular one, the particular description will not restrict the 

general if it is used in the sense of reiteration." 72 A.L.R. at 423, § III(b).  Here, the 

metes and bounds description was clearly used in the sense of reiteration; the deeds rely 

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Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

for a boundary on "the center line of present lane road," and continue, "the center line of 

which is described as . . . ." This merely reiterative role of the metes and bounds 

description manifests the drafter's intent that the actual center line of the road controls

and supports the trial court's conclusion that the actual center line demarks the boundary.  

CP at 322 (Conclusion of Law 2.15).  

                                              IV

       Ms. Coyle's assignment of error 18 challenges the form of the judgment, arguing 

that RCW 4.64.030(2)(b) requires that the judgment summary include some description 
of the property at issue and a reference to its full legal description on the first page.6  A 

judgment reforming a deed and easement arguably does not "provide[] for the award of 

any right, title, or interest in real property" triggering application of the statutory 

requirement, although the notice-providing purpose of the requirement would be served 

by applying it in reformation cases.  We need not decide whether the requirement applies, 

however, because even if it does, the judgment includes a legal description of the land at 

issue on its second, third, and fourth pages.  Substantial compliance with the statute is all 

       6 RCW 4.64.030(2)(b) provides that "[i]f the judgment provides for the award of 
any right, title, or interest in real property, the first page must also include an abbreviated 
legal description of the property in which the right, title, or interest was awarded by the 
judgment, including lot, block, plat, or section, township, and range, and reference to the 
judgment page number where the full legal description is included, if applicable; or the 
assessor's property tax parcel or account number, consistent with RCW 65.04.045(1) (f) 
and (g)."

                                               23 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

that is required and is all that is reasonably possible where the relief granted by the court 

makes it difficult or impossible to include the entire judgment summary on the first page.  

Hu Hyun Kim v. Lee, 102 Wn. App. 586, 592, 9 P.3d 245 (2000), rev'd on other grounds, 

145 Wn.2d 79, 31 P.3d 665, 43 P.3d 1222 (2001).  Ms. Coyle has not shown that any 

substantive requirement of the statute has been violated or identified any remedy that is 

necessary or appropriate.

                                               V

       The Butlers request attorney fees and costs on appeal pursuant to RCW 4.84.185, 

which permits a trial court to make such an award where a civil action is found to be 

frivolous.  RAP 18.9(a) provides that we may impose terms or sanctions against a party, 

including sua sponte, where that party "uses these rules for the purpose of delay, files a 

frivolous appeal, or fails to comply with these rules." In determining whether to impose 

terms or sanctions under RAP 18.9, we must bear in mind (1) that a civil appellant has a 

right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should 

be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) 

an appeal that is affirmed simply because the arguments are rejected is not frivolous; and

(5) an appeal is frivolous if there are no debatable issues upon which reasonable minds 

might differ and it is so totally devoid of merit that there was no reasonable possibility of 

reversal.  Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 

                                               24 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

(2005) (quoting Green River Cmty. Coll. Dist. No. 10 v. Higher Educ. Pers. Bd., 107 

Wn.2d 427, 442-43, 730 P.2d 653 (1986)).

       The vast majority of the assignments of error made by Ms. Coyle to the conduct 

and outcome of trial can be characterized as frivolous; resolving all doubts in her favor, 

however, we cannot say that the patent and latent ambiguities in the deeds and easement

gave rise to no debatable issues. Her appeal of the trial court's contempt order can be 

characterized as frivolous in its entirety.  The appeal of a contempt order does not open 

the door to renewed or new collateral attacks on the underlying judgment, which were the 

only arguments made by Ms. Coyle; all such arguments were totally devoid of merit.  

       Given the rules' appropriate regard for a party's right of appeal, we are 

constrained to limit fee awards to cases where an appeal is frivolous in its entirety.  

Having consolidated the cases for appeal on our own motion, they were briefed on a 

consolidated basis and must be considered as one. We therefore deny the Butlers'

request for fees and costs on appeal. We do so with a cautionary note to Ms. Coyle that 

she should take care not to reargue matters whose resolution is final and not to raise new 

issues that were required to be raised if at all in the first trial; if she does so, she faces a 

real risk of being assessed fees and costs as sanctions.

                                              VI

       The parties were notified approximately two months in advance that Ms. Coyle's 

                                               25 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

appeal was set for oral argument at 9:00 a.m. on October 27, 2011.  Less than an hour 

before the scheduled argument, Ms. Coyle telephoned the office of the clerk to report that 

she would not appear due to an unexplained family emergency.  The Butlers' lawyer, 

Chris Montgomery, did appear, having prepared for oral argument and driven to Spokane 

from Colville for the purpose of the hearing.

       At the beginning of the docket, the chief judge advised Mr. Montgomery that the 

court was prepared to decide the appeal without oral argument and asked if the Butlers 

would waive argument; on behalf of his clients, Mr. Montgomery respectfully declined.  

The judge then notified him that notwithstanding his declination, the panel was of the 

unanimous view that it could, and it therefore would, decide the appeal on the briefs.

       The Butlers have now moved for terms and elaborated on Mr. Montgomery's 

reasons, stated briefly on October 27, for believing that Ms. Coyle's nonappearance 

should not be excused by the court.  In response, Ms. Coyle declines to explain her 

absence, which she characterizes as a private matter.

       The Butlers should not be required to bear the expense of their lawyer's 

preparation and travel to Spokane for the hearing, which was rendered pointless through 

no fault of their own.  They are awarded the $991.16 in terms requested by their motion.

       We affirm the trial court's "Reformation of Easement, Reformation of Deeds, 

Permanent Injunction and Judgment" entered April 20, 2010, and its "Order Finding 

                                               26 

Nos. 29198-7-III; 29517-6-III
Butler v. Coyle

Defendant in Contempt; and for Entry of Judgment" and its "Judgment" entered 

November 5, 2010 in the contempt proceeding.  

       A majority of the panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040.

                                                ___________________________________
                                                Siddoway, J.

WE CONCUR:

__________________________________
Kulik, C.J.

__________________________________
Korsmo, J.

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