Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GARY F. KARLBERG AND SHARON                 )
KARLBERG, a married couple                  )       No. 64595-1-I
                                            )       (consolidated with 66050-1-I &
                      Respondents,          )       66051-9-I)
                                            )
              v.                            )       DIVISION ONE
                                            )
STEVEN L. OTTEN, a single man,              )       PUBLISHED OPINION  
                                            )
                      Appellant.            )       FILED:  April 2, 2012
________________________________)

       Becker, J.  --  This appeal arises from two successive judgments quieting 

title.  In his first action, plaintiff Karlberg sought and obtained a judgment placing 

the new boundary line between his property and defendant Otten's about 

halfway between the surveyed line and an old fence.  In his second action, he 

sought and obtained a judgment establishing the fence as the boundary line.  

Concluding that res judicata barred the splitting of the claim, we reverse the 

second judgment and leave the boundary line as established by the first 

judgment.  

                                        FACTS

       According to unchallenged findings of fact entered after the first trial, the

old fence in question was recognized from at least the early 1940s as the  

No. 64595-1-I/2

boundary between two neighboring properties in the countryside near 
Bellingham.1  Respondent Gary Karlberg bought the western property in 1975. 

He constructed a shop building about 80 feet west of the fence.  

       A survey done in 1994 at the request of the owners of the eastern 

property showed the property line between the two properties was actually 82 

feet west of the fence.  It ran through Karlberg's shop and cut across the 

driveway leading to the shop.  

       Appellant Steven Otten became the owner of the eastern property in 

1996.  A few incidents of conflict were reported to the sheriff at this time as a 

result of some efforts by Otten to interfere with Karlberg's use of the land 

between the survey line and the fence.    

       Beginning in 2003, Otten renewed his challenge to Karlberg's occupancy 

of the land east of the survey line.  He moved junk cars onto it and painted rings 

around the trees.  One year, Otten strung barbed wire along part of the surveyed 

line behind the shop.  In January 2008, he cut down an ornamental tree next to 

the paved driveway and removed a gatepost, damaging the driveway.

       Karlberg sued Otten in February 2008, seeking to quiet title to a 45 foot

wide strip east of the surveyed line -- in other words, to establish the boundary 
about halfway to the fence.2  He alleged that he had acquired title to the strip by 

       1 Appellant Steven Otten assigns error to various findings of fact.  Because he 
does not attempt to show that any of the findings to which he has assigned error are 
not supported by substantial evidence, all of the findings are regarded as verities on 
appeal.  See In re Estate of Lint, 135 Wn.2d 518, 531-32, 957 P.2d 755 (1998) ("It is 
incumbent on counsel to present the court with argument as to why specific findings of 
the trial court are not supported by the evidence and to cite to the record to support that 
argument.").
                                           2 

No. 64595-1-I/3

adverse possession, mutual recognition, or acquiescence and had continually 

used and maintained it.  He referred to the 45 foot strip as "the Disputed Area."  

He particularly alleged, "The true eastern boundary of the Karlberg parcel is 
located 45' to the east of the 1994 survey line."3  Otten answered by denying 

most allegations.  By way of affirmative defense, he asserted the survey line as 

the boundary, alleged that Karlberg's occupation was permissive, and denied 

that Karlberg had ever maintained or improved the area up to the fence.  Otten 

added a counterclaim for trespass damages and sought an injunction to compel 
removal of Karlberg's encroachments.4  

       Before trial, Otten moved to amend his answer to add a counterclaim for 

adverse possession.  The trial court denied the motion. On October 23, 2009, 
Otten filed a separate quiet title action against Karlberg.5  

       After a four day bench trial, the court ruled that the facts proved by 

Karlberg showed that he had acquired title all the way up to the fence either

through mutual recognition and acquiescence and adverse possession by his 
predecessors in title or through his own adverse possession from 1975 to 1994.6  

But Karlberg's complaint had asked to quiet title only to the western 45 feet, the 

strip referred to by Karlberg as "the Disputed Area."  Accordingly, the court 

concluded that Karlberg's title should be quieted only in that portion.  Conclusion 

       2 Whatcom County Superior Court Cause No. 08-2-00445-3.  Clerk's Papers at 
318-27 (Complaint).  
       3 Clerk's Papers at 323.  
       4 Clerk's Papers at 312-17.  
       5 Whatcom County Superior Court Cause No. 09-2-02890-3.  Clerk's Papers at 
344-47 (Complaint).
       6 Clerk's Papers at 282-83, Conclusions of law 2, 3, 4, and 5.  

                                           3 

No. 64595-1-I/4

of Law 6 states:  "Plaintiffs' east boundary is the Fence.  However, since 

plaintiffs' complaint prays only to quiet title to the 45' strip east of the surveyed 
line, title should be quieted to only this area."7  Judgment was entered in the first 

lawsuit on November 20, 2009, quieting title in Karlberg to the western 45 foot 

strip and ejecting Otten from it.  

       On December 29, 2009, Karlberg filed another quiet title action against 
Otten.8 He alleged that Otten had now moved the junk cars farther east, so they 

were not on the 45 foot strip that had just been awarded to Karlberg but were still 

west of the fence.  In this action, Karlberg sought to quiet title to the remaining 

area between the 45 foot strip and the fence and to eject Otten and his cars from 

that area as well. 

       Both parties moved for summary judgment in the two pending cases.  

Karlberg's position was that the findings and conclusions in the first action 

preclusively established his title up to the fence. Otten's position was that the 

judgment in the first action precluded Karlberg from moving the boundary again, 

but that Otten's case should proceed because it concerned property west of the 

survey line that was not discussed in the first action.  On August 13, 2010, the 

trial court granted Karlberg's motion.  Title was quieted in Karlberg to the area 

west of the fence, and the legal descriptions for the Karlberg and Otten 

properties were modified to show the fence as the new boundary line.  The court 
issued a separate order dismissing Otten's complaint.9  

       7 Conclusion of Law 6, Clerk's Papers at 12.  
       8 Whatcom County Superior Court Cause No. 09-2-03432-6.  Clerk's Papers at 
363-69 (Complaint).  
                                           4 

No. 64595-1-I/5

       Otten appeals from both judgments for Karlberg.  He also appeals the 

dismissal of his own lawsuit.  

          OTTEN'S CHALLENGE TO KARLBERG'S FIRST JUDGMENT

       Otten moved to amend his answer to Karlberg's first lawsuit by adding a 

counterclaim to the effect that if the area up to the fence had ever become part 

of the Karlberg property by adverse possession, then Otten had reacquired it, 

except for the area immediately surrounding the shop building, by his own 

adverse possession for more than 10 years.  The trial court denied the motion to 

amend.  Otten assigns error to this ruling. He contends the judgment must be 

reversed and a new trial granted in which his own claim of adverse possession 

can be considered along with Karlberg's.

       In answer to Karlberg's complaint of February 2008, Otten alleged that 

the surveyed line, not the fence, was the true boundary.  He claimed that his 

predecessors in title had granted permission to Karlberg to leave his shop 

building where it stood, that they had never recognized the fence as the 

boundary, and that his own haying activities in the area west of the fence had 

prevented Karlberg from establishing continuous and exclusive use of that land.

He counterclaimed against Karlberg for ejectment and trespass damages.  He 

did not explicitly allege that his own title had been acquired through adverse 

possession.

       On June 2, 2008, the trial court set discovery deadlines.  The discovery 

       9 Clerk's Papers at 334-35.  

                                           5 

No. 64595-1-I/6

cutoff date was 30 days before trial.  Trial was set for November 4, 2008, making 

the discovery cutoff October 5, 2008.  The order stated that if the trial date was 

continued, deadlines related to the original trial date would remain unchanged.

       After two continuances, the trial was rescheduled for October 27, 2009.  

       On October 1, 2009, Otten filed the motion to amend his answer to add a 

counterclaim of adverse possession. Karlberg objected that the discovery

deadline had passed and the case had already been continued twice.  Otten 

replied there was no prejudice because no new witnesses would need to be 

called and the facts supporting his own claim of adverse possession would be 

the same as those he was relying on to defeat Karlberg's claim of adverse 

possession.  The court denied the motion on October 16, 2009.

       Leave to amend is to be "freely given when justice so requires."  CR 

15(a).  We review a trial court's denial of a motion to amend for an abuse of 

discretion.  The touchstone for the denial of a motion to amend is the prejudice 

such an amendment would cause to the nonmoving party.  Donald B. Murphy 

Contractors, Inc. v. King County, 112 Wn. App. 192, 199, 49 P.3d 912 (2002).  In 

determining whether prejudice would result, a court can consider potential delay, 

unfair surprise, or the introduction of remote issues.  Kirkham v. Smith, 106 Wn.

App. 177, 181, 23 P.3d 10 (2001). 

       Where a new claim can be litigated with the same evidence that is 

already in the case, it may be proper for a trial court to allow an amendment 

even when the motion to amend is made shortly before trial.  In Kirkham, for 

                                           6 

No. 64595-1-I/7

example, the defendant moved to add a counterclaim three weeks before trial for 

violation of a statute.  Kirkham, 106 Wn. App. at 180.  Concluding that the 

counterclaim required essentially the same proof as the allegations in an 

existing counterclaim for misrepresentation, the trial court determined there was 

no prejudice and allowed the amendment.  We upheld the decision to allow the 

amendment as a proper exercise of the trial court's discretion.  Kirkham, 106 

Wn. App. at 181.  

       Unlike in Kirkham, Otten's proposed counterclaim could not fairly be 

litigated using only the evidence pertaining to the claims already in the case.  

Karlberg was prepared to prove he had acquired title to the 45 foot strip by 

continuous and exclusive use over many years before 1994.  Otten was now 

proposing to argue that if so, Otten had repossessed it by his own continuous 

and exclusive activities after 1994.  Otten's theory was new.  To defend against 

it, Karlberg would have to focus on Otten's activities after 1994.  With only two 

weeks remaining before trial and no time for another round of discovery, it was 

unfair to put Karlberg in this position. Thus, Otten's motion to amend was 

untimely.  We conclude the trial court did not abuse its discretion by denying the

motion to amend. 

       Alternatively, Otten argues that the motion to amend should have been 

granted because his counterclaim of adverse possession, while not explicitly 

raised in the pleadings, was tried with the implicit consent of the parties.  He 

emphasizes that it was undisputed at trial that from 2000 to 2008, he paid taxes 

                                           7 

No. 64595-1-I/8

on the disputed strip and used it as a true owner would by activities such as 

staking, fencing, clearing, and storing property upon it.

       When issues that are not raised by the pleadings are tried by express or 

implied consent of the parties, they will be treated in all respects as if they had 

been raised in the pleadings.  CR 15(b); Dewey v. Tacoma Sch. Dist. No. 10, 95 

Wn. App. 18, 26, 974 P.2d 847 (1999).  On the other hand, a party who does not 

plead a cause of action or theory of recovery "cannot finesse the issue by later 

inserting the theory into trial briefs and contending it was in the case all along."  

Dewey, 95 Wn. App. at 26.  In determining whether the parties impliedly tried an 

issue, the appellate court will consider the record as a whole, including whether 

the issue was mentioned before the trial and in opening arguments, the evidence 

on the issue admitted at trial, and the legal and factual support for the trial 

court's conclusions regarding the issue.  Dewey, 95 Wn. App. at 26.

       It is true that the court admitted evidence in the first trial that would have 

been relevant to an adverse possession claim by Otten, including Otten's tax 

records.  See RCW 7.28.070.  But the tax records were admitted over Karlberg's 
objection that they were irrelevant10 and Otten did not attempt to justify them on 

the basis that they were relevant to his own claim.  The admission of evidence 

concerning Otten's activities on the land did not signify Karlberg's acquiescence 

to Otten's pursuit of an unpleaded counterclaim of adverse possession, as such 

evidence was also relevant to Otten's defense that his activities interrupted the 

continuity of Karlberg's possession.  Counsel for Karlberg stated in closing 

       10 Report of Proceedings at 493.

                                           8 

No. 64595-1-I/9

argument that Karlberg had not consented to trial of an adverse possession 
claim by Otten.11  On this record, Otten does not demonstrate that his proposed 

counterclaim was tried by implied consent.  

       Otten next contends his original answer stated a claim of adverse 

possession by generally alleging ownership of the disputed strip, and the trial 

court erred by refusing to consider it.  According to Otten, an allegation of 

ownership in fee entitles a litigant to introduce proof of any title, including that 

acquired by adverse possession.  We will not discuss this argument or consider 

the authorities Otten cites in support of it.  Otten did not make this argument 

below.  A failure to preserve a claim of error by presenting it first to the trial court 

generally means the issue is waived.  See Bellevue Sch. Dist. No. 405 v. Lee, 70 

Wn.2d 947, 950, 425 P.2d 902 (1967); RAP 2.5(a). While an appellate court 

retains the discretion to consider an issue raised for the first time on appeal, 

such discretion is rarely exercised.  Smith v. Shannon, 100 Wn.2d 26, 38, 666 

P.2d 351 (1983). Here, it would be unfair to Karlberg to reverse the first 

judgment and remand for a new trial to allow Otten to present a claim of adverse 

possession he did not squarely present the first time around.

       Otten's challenge to the first judgment in favor of Karlberg (November 20, 

2009) fails.  That judgment will be affirmed.

        OTTEN'S CHALLENGE TO KARLBERG'S SECOND JUDGMENT

       Karlberg's second quiet title action filed on December 29, 2009, claimed 

       11 Report of Proceedings at 550.  

                                           9 

No. 64595-1-I/10

ownership all the way up to the fence.  On August 13, 2010, the trial court 

granted Karlberg's motion for summary judgment based on the findings and 

conclusions entered on November 20, 2009, in Karlberg's previous action.  

Otten contends the 2009 judgment is res judicata as to the boundary line defined 

in Karlberg's second suit and that the judgment of August 13, 2010, must be 

reversed because it does not limit Karlberg to the 45 foot strip he was awarded 

in the first judgment.

       As a preliminary matter, Karlberg contends that Otten waived the defense 

of res judicata.  The defense of res judicata can be waived if the defendant is 

aware of a second suit for the same cause of action.  Brice v. Starr, 93 Wash. 

501, 504-05, 161 P. 347 (1916); Landry v. Luscher, 95 Wn. App. 779, 786, 976 

P.2d 1274, review denied, 139 Wn.2d 1006 (1999); Restatement (Second) of 

Judgments § 26 (1)(a) (1982).  But here, Karlberg's second suit came after 

judgment was granted in the first case.  Because Karlberg's two suits were not 

pending at the same time, this exception does not apply.  Landry, 95 Wn. App. at 

786-87.

       Res judicata does not apply to issues reserved from adjudication.  

Cummings v. Guardianship Servs. of Seattle, 128 Wn App. 742, 754, 110 P.3d 

796 (2005), review denied, 157 Wn.2d 1006 (2006); Restatement (Second) of 

Judgments § 26 (1)(b).  Karlberg contends the trial court "reserved" the issue 

concerning the rest of the property up to fence.  The record does not support this 

argument.  There was no discussion of any issue being reserved.  The issue of 

                                           10 

No. 64595-1-I/11

ownership up to the fence was fully heard.  We will proceed to reach the merits 

of Otten's res judicata defense.  
       Karlberg's first complaint12 alleged that the true eastern boundary of his

parcel was 45 feet to the east of the 1994 survey line. The 45 foot strip was the 
area that Karlberg claimed he had long been "maintaining."13  But Karlberg's trial 

memorandum described the fence, 82 feet to the east of the survey line, as the 
recognized boundary between the Karlberg and Otten properties.14  Counsel for 

Karlberg explained at the beginning of the trial that the objective was to obtain 

only 45 feet:  

              Counsel:  All we are moving in this case to do is to quiet title 
       to this 45 feet.  And there is no law that says we have to sue for 
       everything we own.  I mean, if a personal injury litigant wants to 
       waive damages over 50 thousand and go to district court or 
       mandatory arbitration, they have a right to do that. . . . 
              . . . .   
              The Court:  You are not moving to quiet title to the whole 
       strip or up to the former fence line?
              Counsel:  We are not.  In the Complaint we just plead to the 
       45 feet.[15]  

In explaining why he did not seek to obtain a judgment for the entire 82 feet up 

to the fence, Karlberg alluded briefly to "peace in the neighborhood" and 
"historical reasons."16  

       At the time judgment was rendered, Karlberg again addressed the 

       12 Whatcom County Superior Court Cause No. 08-2-00445-3 filed on February 
25, 2008.  
       13 Clerk's Papers at 523 (Karlberg's declaration in support of motion for a 
preliminary injunction, filed February 25, 2008).  
       14 Clerk's Papers at 421-22.  
       15 Report of Proceedings at 9-10 (Oct. 27, 2009). 
       16 Report of Proceedings at 9, 11 Oct. 27, 2009).

                                           11 

No. 64595-1-I/12

discrepancy by saying that the findings should "hold that the title to the property 

actually goes to the fence line," but the relief granted should be to quiet title only 
to the first 45 feet because that was all the complaint asked for.17 The trial 

judge, though puzzled by Karlberg's request for less than he was entitled to, did 

as requested:  

              The Court:  I believe that the, under the facts presented the 
       law requires that title be quieted to the plaintiffs as per I believe it 
       was Exhibit No. 27.  But the Findings as [counsel for Karlberg]
       points out, I think the Findings should directly reflect the -- Findings 
       of Fact should reflect that the title passed to, up to the fence line 
       but we are only quieting title, for reasons I do not yet understand, 
       maybe never will, but the request is to quiet title up to that which is 
       set forth in Exhibit No. 27 [Plaintiff's Exhibit, a survey depicting a 
       "Quiet Title Strip" 45 feet wide].[18]

The court entered findings of fact supporting all the elements of adverse 

possession by Karlberg and his predecessors in title all the way up to the fence, 

and entered Conclusion of Law 6 which stated that although the fence was the 

boundary, Karlberg's title would be quieted only to the 45 foot strip east of the 
surveyed line.19  

       Karlberg's second suit sought to quiet title to the remaining area up to the 
fence.2 Karlberg moved for summary judgment by relying on the findings and 

conclusions entered in the first action.21  The trial court granted Karlberg's 

motion and established Karlberg's title to the entire strip of about 82 feet, with 

       17 Report of Proceedings at 556 (Nov. 2, 2009).  
       18 Report of Proceedings at 580-81 (Nov. 2, 2009).  
       19 Clerk's Papers at 12.
       2 Whatcom County Superior Court Cause No. 09-2-03432-6, filed 12-29-2009; 
Clerk's Papers at 363-69.  
       21 Clerk's Papers at 548-49.  

                                           12 

No. 64595-1-I/13

the fence as his eastern boundary.22  

       Otten contends, as he did below, that the first judgment awarding the 45 

foot strip to Karlberg precluded Karlberg from later claiming the remaining land 

up to the fence.  

       When reviewing an order for summary judgment, we engage in the same 

inquiry as the trial court, and will affirm summary judgment if there is no genuine 

issue of any material fact and the moving party is entitled to judgment as a 

matter of law.  Marthaller v. King County Hosp. Dist. No. 2, 94 Wn. App. 911, 

915, 973 P.2d 1098 (1999).  All facts and reasonable inferences must be 

considered in a light most favorable to the nonmoving party, and all questions of 

law are reviewed de novo.  Marthaller, 94 Wn. App. at 915.  

       Res judicata is a judicially created doctrine designed to prevent 

relitigation and to curtail multiplicity of actions by parties, participants or privies 

who have had an opportunity to litigate the same matter in a former action in a 

court of competent jurisdiction.  Corbin v. Madison, 12 Wn. App. 318, 323, 529 

P.2d 1145 (1974), review denied, 85 Wn.2d 1005 (1975).  Also referred to as

claim preclusion or as the prevention of "claim splitting," res judicata prohibits 

the relitigation of claims and issues that were litigated, or could have been 

litigated, in a prior action.  Ensley v. Pitcher, 152 Wn. App. 891, 899, 222 P.3d 

99 (2009), review denied, 168 Wn.2d 1028 (2010); Pederson v. Potter, 103 Wn. 

App. 62, 67, 11 P.3d 833 (2000), review denied, 143 Wn.2d 1006 (2001).  The 

doctrine "puts an end to strife, produces certainty as to individual rights, and 

       22 Clerk's Papers at 213.  

                                           13 

No. 64595-1-I/14

gives dignity and respect to judicial proceedings."  Walsh v. Wolff, 32 Wn.2d 

285, 287, 201 P.2d 215 (1949).  Allowing a claimant to split a single cause of 

action or claim "would lead to duplicitous suits and force a defendant to incur the 

cost and effort and defending multiple suits."  Landry, 95 Wn. App. at 782.  The 

general rule is that "if an action is brought for part of a claim, a judgment 

obtained in the action precludes the plaintiff from bringing a second action for 

the residue of the claim."  Landry, 95 Wn. App. at 782.  

       Application of res judicata requires identity between a prior judgment and 

a subsequent action as to (1) persons and parties, (2) causes of action, (3) 

subject matter, and (4) the quality of persons for or against whom the claim is 

made.  Res judicata also requires a final judgment on the merits.  Pederson, 103 

Wn. App. at 67.

       Karlberg's two actions both dealt with the disputed boundary between 

Karlberg and Otten, and both were actions for quiet title and ejectment.  Karlberg 

nevertheless contends the second lawsuit dealt with different subject matter and 

was not the same cause of action because it involved two different pieces of 

property.  

       In general, two separate actions to quiet property in two separate and 

distinct pieces of property do not involve the same subject matter.  See St. 

Luke's Evangelical Lutheran Church of Country Homes v. Hales, 13 Wn. App. 

483, 487, 534 P.2d 1379 ("The property therein involved, not being the subject 

of this action, res judicata is not applicable."), review denied, 86 Wn.2d 1003 

                                           14 

No. 64595-1-I/15

(1975); see also Ollison v. Vill. of Climax Springs, 916 S.W.2d 198, 201 (Mo. 

1996) ("In successive quiet title actions involving the same parties or their 

privies, a judgment in the first action is not res judicata with respect to the 

second action if the land involved in the second action is separate and distinct 

from the land involved in the first action.").  The above cases, however, involve 

parcels of land that are separate and distinct.  In this case, there were two 

adjoining properties, and the only question was where to draw the boundary line.  

The question presented is whether a litigant may bring successive identical quiet

title actions involving a disputed boundary, each time seeking to move the 

boundary so as to expand his own acreage.  

       Otten contends a change in the amount of property sought does not avoid 

the bar of res judicata, citing Kinsey v. Duteau, 126 Wash. 330, 218 P. 230 

(1923).  There, the court considered two separate quiet title suits involving the 

same property.  Duteau held an executory contract to purchase the property.  He 

assigned it to Kinsey, his brother-in-law, and left Kinsey the funds necessary to 

pay off the contract while Duteau was away in Africa.  It was agreed that Kinsey 

would be given a half interest in the property for his service.  Kinsey paid off the 

contract and took a deed to the property in his own name in 1903.  Duteau sued 

Kinsey in 1920 to recover a one-half interest in the property.  His complaint was 

dismissed. In 1921, Kinsey sued Duteau to quiet title to the property.  Duteau 

cross complained, this time suing for title to the entire property as the equitable 

and beneficial owner.  The trial court found Duteau's claim precluded by his 

                                           15 

No. 64595-1-I/16

previous action.  The application of res judicata was affirmed on appeal, with the 

court rejecting Duteau's argument that he had stated a different cause of action 

in the second suit by requesting title to the entire property as well as by adding 

an allegation of fraud:

       But we cannot think this change in the relief sought, or the 
       additional allegation of fraud, in any manner affects the first action 
       as a bar.  Certainly, if the facts set forth in the first complaint did 
       not entitle the appellant to recover even a one-half interest in the 
       property, the same facts would not justify a recovery of the entire 
       interest.  More than this, there can be no splitting of causes of 
       action.  A party cannot in one action sue for a part of that which he 
       is entitled to recover, and in a subsequent action sue for the 
       remainder when the right of recovery rests upon the same state of 
       facts.

Kinsey, 126 Wash. at 333-34 (emphasis added).

       Focusing on the first rationale expressed in the above quotation, Karlberg 

contends Kinsey is not on point because "the facts set forth in the first complaint" 

did entitle Karlberg to recover half of the property.  But Karlberg does not come 

to grips with the second rationale.  He does not explain why seeking to recover 

the first 45 feet in the first action and the remainder in the second action should 

not be regarded as splitting a cause of action.  In each case, his right of 

recovery rested on the same state of facts.  Indeed, in the second action, the 

court relied on the findings and conclusions entered in the first action.

       Otten also cites Kemmer v. Keiski, 116 Wn. App. 924, 68 P.3d 1138 

(2003), as illustrative of res judicata as applied in a property dispute.  In the first 

action, Keiski obtained an easement by necessity over Kemmer's property.  The 

judgment limited the width of the easement to 12 feet.  Kemmer built a fence 

                                           16 

No. 64595-1-I/17

along both sides of the 12 foot road.  This made the road too narrow for the 

logging trucks Keiski wanted to bring in.  He went back to court and obtained

another judgment, this one expanding the width of the easement to as much as

30 feet to accommodate the logging trucks.  The trial court viewed this second 

judgment as a clarification of what had been intended in the first judgment.  The 

second judgment was reversed on appeal as precluded by the earlier judgment.  

Calling it a clarification was a misnomer; what it actually did was to order a 

substantial expansion of the easement granted in the first judgment.  The second 

judgment "was not accomplished in compliance with CR 59, CR 60, or any other 

exception to preclusion that we are aware of."  Kemmer, 116 Wn. App. at 934.

       Kemmer is helpful in understating what occurred here.  Karlberg obtained 

precise relief in the first judgment -- title to the first 45 feet. Karlberg had every 

opportunity in that first case to quiet title all the way to the fence.  The findings 

and conclusions in the first action supported the relief he sought in the second 

action.  Karlberg may have decided it was a mistake to limit his acquisition to 45 

feet, but as Kemmer shows, commencement of a new and independent action 

upon the same subject matter is not an approved way to correct a mistake.  See 

also Hahl v. Sugo, 169 N.Y. 109, 62 N.E. 135, 137 (1901) (Plaintiff's second suit 

sought to remove an encroachment on property; it was precluded because in 

plaintiff's first suit, which established ownership to the property, plaintiff could 

have asked for the encroachment to be removed but failed to do so.).  

       The principal case relied on by Karlberg to avoid preclusion is Wash. 

                                           17 

No. 64595-1-I/18

Nickel Mining & Alloys, Inc. v. Martin, 13 Wn. App. 180, 534 P.2d 59, review

denied, 86 Wn.2d 1002 (1975).  There, plaintiffs sued to quiet title to property 

occupied by defendants.  The plaintiffs' surveyor defined the boundary line by 

assuming one of the section corners was a "lost corner," but the defendant's 

surveyors more convincingly established it was an "obliterated" corner.  Wash. 

Nickel, 13 Wn. App. at 182-83.  The trial court dismissed the complaint after 

finding the plaintiffs had not carried the burden of proving the location of the 

boundary.  This court determined that the findings about the corner were 

supported by substantial evidence.  The plaintiffs argued that instead of 

affirming the dismissal, this court should send this case back for more fact-

finding to determine the actual location of the boundary line.  We rejected this 

request and affirmed the order of dismissal.  Anticipating a second suit, however, 

we held that the judgment of dismissal was res judicata only as to the location of 

the corner where the legal description would begin. Wash. Nickel, 13 Wn. App. 

at 182-83.

       Karlberg argues that just as the plaintiff in Wash. Nickel was free to go 

back to court to begin a new action that would finally determine the boundary 

line, he was free to begin a new action that would finally determine title to the 

remaining portion of the land between the survey line and the fence.  His 

attempted analogy is not persuasive.  In Wash. Nickel, the first action 

determined only the location of the corner point where the legal description 

would begin.  Here, the first action ended with a judgment containing a complete 

                                           18 

No. 64595-1-I/19

legal description of the 45 foot wide strip that Karlberg had acquired.  The first 

action determined a line, not just a point.  The judgment established the 

boundary line between Karlberg and Otten at 45 feet east of the survey line.  

And because it is the judgment that has preclusive effect, it is of no avail to 

Karlberg that the findings and conclusions in the first action supported title all 

the way up to the fence.  

       Where judgment in the first action determines the boundary line between 

two adjoining properties, the judgment is preclusive of future attempts to move 

the boundary line in one direction or another.  The rule is well stated in Baroutsis 

v. Gregory, 154 Pa. Super. 136, 139, 35 A.2d 559 (1944):  

              While it is true, as appellant states, that the two actions are 
       for different pieces of ground the same question, namely the 
       location of the correct division line, was the pivotal issue in both 
       actions.  If appellant's theory is correct he might, by suing to 
       recover only a part, instead of all, of the land he actually claims, 
       subject a defendant to a series of suits.  That cannot be done.  A 
       defendant would be entitled to relief from such an intolerable 
       situation.  The first trial resulted in a final, unappealed from, 
       judgment, and determined the location of the disputed division line.

       In summary, this case is like Kinsey, not like Wash. Nickel.  Just as 

Kinsey could have sued for his whole interest in the land, Karlberg could have 

sued for the entire 82 foot strip in the first action.  Instead, he split his claim.  

       We conclude the two actions were identical and both involved the same 

subject matter.  Res judicata bars Karlberg's second suit.  The boundary line 

between Karlberg and Otten shall remain at 45 feet east of the survey line as 

established in the first judgment.  

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No. 64595-1-I/20

       The same reasoning compels affirmance of the order dismissing Otten's 

lawsuit.  Otten's opportunity to litigate his own adverse possession claim and 

adjust the boundary to his own benefit was through a counterclaim in Karlberg's 

first lawsuit.  Having failed to make this claim in a timely manner, Otten too must 

abide by the boundary line established in Karlberg's first lawsuit.  

        The judgment of November 20, 2009, in cause number 08-2-00445-3 is 

affirmed.  The summary judgment of August 13, 2010, in cause number 09-2-

03432-6, which established the old fence as the boundary line, is reversed.  The 

order dismissing Otten's lawsuit in cause number 09-2-02890-3 is affirmed.  

WE CONCUR:

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