In Re: Jorge H. Navas, Appellant V. Myrna Linett Duarte Sas, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JORGE H. NAVAS, an individual,
Appellant,
v.
MYRNA L. DUARTE, an individual,
Respondent,
M & T BANK, a foreign corporation
registered to do business in
Washington,
Defendant.
DIVISION ONE
No. 84948-4-I
UNPUBLISHED OPINION
DWYER, J. — In this partition action, cotenant Jorge Navas appeals from
the order of the superior court granting to cotenant Myrna Duarte, his former wife,
sole interest in certain real property on the basis that Duarte had ousted him from
that property. On appeal, Navas asserts that the trial court erred by so
determining. We agree. We conclude that the trial court abused its discretion in
making that determination and that we cannot affirm the trial court’s order on any
other basis in the record presented to us on appeal. Accordingly, we reverse.
I
In December 1999, Jorge Navas and Myrna Duarte became married to
one another. In 2006, they acquired community property in the form of a house
in Mill Creek, Washington. They purchased the house and the single-family

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zoned lot on which it was constructed for $425,435 using both sale proceeds of
their prior community property home and loan proceeds from a mortgage
secured by the Mill Creek house. In January 2008, they refinanced their loan on
the Mill Creek property.
In December 2012, Navas and Duarte obtained a divorce decree in El
Salvador. It being a foreign divorce, the decree entered did not address the
disposition of the Mill Creek home. As a result, the parties became tenants in
common of that property. After the divorce, Duarte moved out of the home and
Navas continued to reside on the property. In late 2013, Navas and Duarte
reconciled their relationship and lived together in the house, eventually having a
second child together in June 2014.
By then, both parties had become unemployed. They stopped making
loan payments on the mortgage. In November 2014, they received a notice that
their loan provider was foreclosing on the property. More than one year later, in
January 2016, the parties were informed that their home would be sold at an
auction occurring on May 20, 2016, in order to satisfy the debt owing on their
loan.
Three days before the auction, on May 17, 2016, Duarte filed for Chapter
13 bankruptcy, which paused the foreclosure and imminent auction. As part of
the bankruptcy process, Duarte agreed to make payments of $4,000 per month
for 60 months, an amount which included the monthly loan payment due on the
property. According to Duarte, Navas agreed to pay one half of the bankruptcy

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payments each month. However, Navas gave Duarte only one payment of
$2,000 while he lived in the home.
On October 1, 2016, Navas moved out of the home, in part so that Duarte
could rent out his bedroom. The Mill Creek home had five bedrooms, one of
which the parties had previously rented out for $700 per month. After Navas left,
Duarte was able to also rent out the room that he had previously occupied.
Thereafter, during the time in question, Navas did not return to reside in
the home. He paid to Duarte one additional payment of $2,000 after which he
did not make—or assist with—the property’s loan payments, taxes, or
maintenance costs. Navas did not receive any portion of the rental income from
the property.
At the time of Duarte’s discharge from bankruptcy in June 2021, she had
paid $217,000 to the bankruptcy trustee, satisfying the terms of the bankruptcy
plan and saving the home from foreclosure and auction despite undergoing
intensive cancer treatment in 2020 and 2021. In August 2021, two months after
Duarte emerged from bankruptcy, Navas petitioned the Snohomish County
Superior Court to partition the Mill Creek property. Duarte responded, arguing
that Navas had abandoned the property in 2016. She requested that the trial
court use its equitable powers to award her a 100 percent interest in the property
“as she is the only one who preserved the asset and has used her separate
income and funds for years to maintain the property.”
The court appointed a referee to create a report detailing
recommendations as to the equitable interests of each of the parties. The

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referee did so, identifying “a hierarchy of issues that should cascade to resolution
of this matter,” and that the court should begin by asking “Did [Navas] abandon
and thus lose his interest in the property? If he did, then no partition is needed
and [Duarte] should be awarded the subject property as her sole and separate
property (subject to refinancing).” The trial court later reviewed the referee’s
report and held a trial with testimony from the parties and the referee.
The trial court then issued an order awarding full interest in the property to
Duarte. The court ordered Navas to execute a quitclaim deed to transfer the
property to Duarte. In arriving at this conclusion, the trial court cited the referee’s
opinion that Navas had abandoned his interest in the property when he left the
home and ceased financial contributions. However, rather than applying the
referee’s theory of abandonment, the trial court concluded that Duarte’s
ownership of the property was open and adverse to Navas and that she had
ousted him from the property. Notably, the trial judge handwrote in the margins
of the order that “this was ouster.” In its written findings of fact and conclusions
of law, the trial court also recited the three elements of ouster as set forth in
Yakavonis v. Tilton, 93 Wn. App. 304, 306, 968 P.2d 908 (1998):
a cotenant obtaining sole possession of a property adverse to the
other tenant; the cotenant repudiates or disavows the relation of the
co-tenancy; the tenant does not have possession of the premises
and is aware of actions by the cotenant that signify his or her intent
to hold, occupy, and enjoy the premises exclusively.
In its final order, the trial court “crossed off” the term “preponderance of the
evidence” (the burden of proof applicable to a partition action) and interlineated

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the term “clear and convincing evidence” (the standard of proof applicable to an
ouster claim). She found that Duarte’s proof met this standard.1
In addition, the trial court ordered that Navas was entitled to one half of
the rental income from October 1, 2016 to September 1, 2022. The trial court
found that the value of the rent was $770 per month during that time, with a
reduction in the rental amount from March 2020 to March 2021 due to the
pandemic. The court then calculated and ordered Duarte to pay Navas a sum of
$25,025.
Navas moved for reconsideration, requesting that the trial court award the
equity of the property equally to the parties. The trial court denied the motion for
reconsideration.
Navas now appeals.
II
Navas asserts that the trial court erred by quieting title based on a theory
of ouster. Because neither party pled ouster and because we cannot affirm the
trial court’s order on such a theory based on the record presented to us on
appeal, we hold that the trial court abused its discretion by divesting Navas of his
present and future ownership interest in the property in reliance on a theory of
ouster.
1 In the case of cotenancies, abandonment and ouster are far from the same.
Abandonment requires a voluntary relinquishment of a cotenant’s ownership interests. Ouster is
a wrongful deprivation of one cotenant’s ownership interests by a second cotenant. See Section
II B, infra.

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A
In his petition to the trial court, Navas brought a cause of action for a
partition. He requested relief in the form of a partition of the Mill Creek property.
Therefore, we review the trial court’s order in this matter as if we are reviewing a
request for partition.
“The right of partition by a tenant-in-common of real property is absolute in
Washington, and is governed by statute in RCW 7.52.” Anderson & Middleton
Lumber Co. v. Quinault Indian Nation, 130 Wn.2d 862, 873, 929 P.2d 379 (1996)
(footnote omitted). In addition to being a statutory right, partition is an equitable
remedy subject to judicial discretion. Friend v. Friend, 92 Wn. App. 799, 803,
964 P.2d 1219 (1998). As an equitable proceeding, the court has “great flexibility
in fashioning relief for the parties.” Cummings v. Anderson, 94 Wn.2d 135, 143,
614 P.2d 1283 (1980).
Hence, we review a trial court’s decision when deciding an action for
partition for abuse of discretion. Overlake Farms B.L.K. III, LLC v. Bellevue-
Overlake Farms, LLC, 196 Wn. App. 929, 939, 386 P.3d 1118 (2016). “A
decision constitutes an abuse of discretion when it ‘is manifestly unreasonable or
based on untenable grounds.’” Kreidler v. Cascade Nat’l Ins. Co., 179 Wn. App.
851, 861, 321 P.3d 281 (2014) (quoting In re Marriage of Fiorito, 112 Wn. App.
657, 663-64, 50 P.3d 298 (2002)). A decision is manifestly unreasonable “if it is
outside the range of acceptable choices, given the facts and the applicable legal
standard,” and is based on untenable reasons “if it is based on an incorrect

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standard or the facts do not meet the requirements of the correct standard.”
Fiorito, 112 Wn. App. at 664.
Accordingly, we review the trial court’s order in this matter for abuse of
discretion.
B
To reiterate, as a cotenant, Navas filed a petition for a partition of the Mill
Creek property. His right to this “is absolute in Washington.” Anderson &
Middleton, 130 Wn.2d at 873. The trial court, in response, issued a final order in
reliance on an unpled theory of ouster. Given all of this, in order to determine
whether the trial court abused its discretion, it is instructive to set forth the legal
standards applicable to partition and ouster.
1
The right to partition has existed in Washington, largely unchanged, since
it was enacted by the territorial legislature in 1869.2 The statute provides:
When several persons hold and are in possession of real property
as tenants in common, in which one or more of them have an
estate of inheritance, or for life or years, an action may be
maintained by one or more of such persons, for a partition thereof,
according to the respective rights of the persons interested therein,
and for sale of such property, or a part of it, if it appear that a
partition cannot be made without great prejudice to the owners.
RCW 7.52.010. While the statute allows for partition in kind3 or by sale, partition
in kind is favored when practicable. Hegewald v. Neal, 20 Wn. App. 517, 522,
582 P.2d 529 (1978).
2 LAWS OF 1869.
3 “In a partition in kind, the property is physically divided, and the individual interests of
each joint owner are severed so that, after partition, each has the right to enjoy an estate, or dispose
of the estate, without hindrance from the other.” 59A AM. JUR. 2D Partition § 3 (footnote omitted).

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To effectuate a partition, the trial court appoints one or more referees who
“shall divide the property, and allot the several portions thereof to the respective
parties, quality and quantity relatively considered, according to the respective
rights of the parties as determined by the court.” RCW 7.52.090. The court
should order a sale of the property when “the property or any part of it, is so
situated that partition cannot be made without great prejudice to the owners.”
RCW 7.52.080. The court may award monetary equalizing compensation—
known as an owelty— when a “partition cannot be made equal between the
parties according to their respective rights, without prejudice to the rights and
interests of some of them.” RCW 7.52.440; see Hartley v. Liberty Park Assocs.,
54 Wn. App. 434, 438, 774 P.2d 40 (1989).
2
Ouster “is the wrongful dispossession or exclusion by one tenant in
common of his or her cotenant or cotenants from the common property.” 86
C.J.S. Tenancy in Common § 28 (2017). “Ouster occurs when a cotenant
obtains sole possession of the land that is adverse to the other cotenants, where
the cotenant repudiates or disavows the relation of the cotenancy or where the
tenant without possession is aware of actions by the tenant in possession that
signify his or her intention to hold, occupy, and enjoy the premises exclusively.”
Yakavonis, 93 Wn. App. at 308. An ouster, by itself, does not cause an alteration
of the ownership interests of the cotenants. Only after the applicable statute of
limitation has expired, without the wronged cotenant taking steps to assert that
cotenant’s interest, can the possessory cotenant acquire “absolute title by the

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succeeding and continued adverse possession.” Church v. State, 65 Wash. 50,
55, 117 P. 711 (1911).
To be clear, an ouster can result in an alteration of ownership only when
the ouster is “ʻfollowed by adverse possession for the statutory period.’”
McKnight v. Basilides, 19 Wn.2d 391, 398, 143 P.2d 307 (1943) (quoting Church,
65 Wash. at 55).
The law has developed in this manner because when land is owned by
cotenants, “there is a presumption that possession by one tenant is possession
by all and inures to the benefit of all.” Peters v. Skalman, 27 Wn. App. 247, 254,
617 P.2d 448 (1980). Mere possession by one cotenant does not constitute
ouster. Yakavonis, 93 Wn. App. at 308. Because ouster is a wrongful act
whereby one cotenant’s use of the property excludes others, the occupying
cotenant is liable to be required to reimburse the other cotenants for losses or
damages such as the rental value of their frustrated property interests. In re
Marriage of Maxfield, 47 Wn. App. 699, 708, 737 P.2d 671 (1987). Thus, the
remedy for ouster is an award of damages for the past wrong of depriving the
ousted cotenants of their right to use the property.
As previously set forth, ouster does not warrant quieting title in one
cotenant absent adverse possession for the requisite statutory period. Adverse
possession between cotenants “must be established by outward acts of ‘such an
unequivocal character as to impart notice’ of the intended ouster.” Peters, 27
Wn. App. at 254 (quoting Nicholas v. Cousins, 1 Wn. App. 133, 137, 459 P.2d

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970 (1969)).4 Ouster “requires proof which is ‘stronger and more convincing than
that necessary to sustain an ordinary claim of adverse possession,’” described as
“clear, unequivocal, unmistakable or convincing evidence.” Thor v. McDearmid,
63 Wn. App. 193, 207, 817 P.2d 1380 (1991) (quoting Silver Surprize, Inc. v.
Sunshine Mining Co., 88 Wn.2d 64, 66, 558 P.2d 186 (1977)).
C
We next consider whether the trial court abused its discretion by (1)
relying on a theory of ouster to determine rightful possession of the Mill Creek
property and (2) granting to Duarte an exclusive property interest therein. As to
both determinations, the trial court abused its discretion.
Here, the parties agree that their divorce decree from El Salvador did not
dispose of the ownership of the Mill Creek home, resulting in their possession of
the property as tenants in common. As was his right as a cotenant, Navas
petitioned the superior court to partition the property pursuant to RCW 7.52.010.
Given the applicable legal standards, the trial court’s statutory obligation
was to determine the parties’ respective rights to the property and whether
partition would be effectuated in kind or by sale. RCW 7.52.010.
Instead, the court concluded that Duarte held a 100 percent interest in the
property based on clear and convincing evidence that she had ousted Navas on
October 1, 2016 when Navas left the home and ceased making direct financial
4 Adverse possession requires a showing of hostility by one cotenant. Abandonment, to
the contrary, rests on a voluntary relinquishment of ownership rights by the other cotenant. Proof
of one cannot prove the other.

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payments toward the property. According to the trial court, Duarte’s ownership
was then “open and adverse” to Navas.
The trial court abused its discretion by so concluding. We say this for
three reasons. First, ouster is a separate cause of action. An action for a
partition is not a cause of action for ouster. Here, Navas filed an action for
partition of the property. He did not file an action seeking an award of damages
for a wrongful ouster. Similarly, Duarte—in her various answers—never asserted
a claim for ouster. Ouster was not a cause of action that was put at issue in this
case. The trial court erred by deciding an action for a partition as if it were an
action for an ouster.
Second, a cotenant’s sole possession or use of the property does not
amount to the hostile assertion of adverse possession necessary to prove ouster.
Rather, ouster requires an act of “an unequivocal character as to impart notice”
of ouster. Nicholas, 1 Wn. App. at 137. The record before the court does not
adduce any evidence of an act of that nature. Duarte testified that Navas’s
departure was “amicable,” and that she did not “kick him out.” Navas chose to
leave the home, in part, to allow Duarte to rent his room. Navas’s voluntary
departure from the home does not provide clear and convincing evidence that
Duarte asserted, or gave notice of an intention to assert, exclusive possession of
the property. Because the record does not support a finding of ouster, the trial
court’s reliance on the theory was erroneous.

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Third, even if an ouster had been established—and it was not— the
remedy imposed by the trial court (quieting title exclusively in Duarte) was
erroneous.
Ouster can only result in a cotenant’s loss of an ownership interest after
the statutory period for adverse possession has run. Church, 65 Wash. at 55.
As pertinent here, we note a division of authorities as to whether the applicable
statutory period is seven years (pursuant to RCW 7.28.050) or ten years
(pursuant to RCW 4.16.020(1)). See Peters, 27 Wn. App. at 250; In re Kelly &
Moesslang, 170 Wn. App. 722, 736, 287 P.3d 12 (2012). However, we need not
resolve that dispute in order to resolve this matter.
Here, less than five years passed between October 1, 2016 (when Navas
left the house) and August 24, 2021 (when Navas filed his petition for partition).
Thus, regardless of which limitation period applies to this situation, neither
expired during that period of time.
Accordingly, the trial court plainly erred. Navas submitted a claim to
possession of the Mill Creek property within the allowable period of time to
preclude either the seven-year or the ten-year statute of limitation for adverse
possession from expiring. RCW 7.28.050; RCW 4.16.020(1).5 The evidentiary
record simply does not reflect that Duarte presented the trial court with evidence
sufficient to support finding an ouster for a duration that exceeded the statutory
5 The remedy for ouster absent adverse possession would be an award of damages to
Navas for past loss of use of his property interest. Navas and Duarte would remain tenants in
common. However, Navas did not plead ouster and did not request an award of damages for
past deprivation of his property interest.

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limitation period for adverse possession. Thus, the trial court’s decision to quiet
title in Duarte based on a theory of ouster was an abuse of discretion.
D
Nevertheless, Duarte asserts that the trial court’s erroneous rulings do not
warrant reversal because the record contains evidence sufficient to deem the
error harmless and affirm the trial court’s decision. We disagree.
“It is well established that errors in civil cases are rarely grounds for relief
without a showing of prejudice to the losing party.” Saleemi v. Doctor’s Assocs.,
Inc., 176 Wn.2d 368, 380, 292 P.3d 108 (2013). Additionally, we may affirm a
trial court’s decision on any ground established by the pleadings and supported
by the record. Pub. Util. Dist. No. 2 of Pac. County v. Comcast of Wash. IV, Inc.,
8 Wn. App. 2d 418, 455 n.41, 438 P.3d 1212 (2019). Conversely, it logically
follows that we cannot affirm a trial court on a ground neither established by the
pleadings nor supported by the record. See Pub. Util. Dist., 8 Wn. App. 2d at
455 n.41.
To affirm the decision to quiet title in Duarte, we must consider whether
the record supports the legal conclusion that Duarte possessed a 100 percent
interest in the property pursuant to the laws applicable to a partition action. It
does not.
Although the trial court properly credited Duarte with preventing
foreclosure on the property, the testimony presented to the trial court reflected
that the Mill Creek property was purchased with community funds, and the
income generated by renting Navas’s room contributed to the payments made to

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the bankruptcy trustee. This evidence suggests that Navas never voluntarily
surrendered his interest in the property. Thus, we cannot affirm the trial court’s
decision to award title solely to Duarte based on the record before us.
To determine whether the errors were harmless we would need the record
to inform us as to many questions that were never answered. What was the
gross value of the house and lot? What was its value net of the mortgage owed?
Given that cotenants begin the analysis as equal owners, what share or
percentage of ownership was equitably attributable to Duarte or to Navas? What
were the factual findings that supported this determination?
In addition, the monetary award entered in Navas’s favor constituted a
monetary amount calculated as if it was a damage award to compensate him for
a past wrong. This is in no way the equivalent of an owelty amount sufficient to
compensate him for the loss of his present and future ownership interest in the
property at issue.
On this record, it is impossible to find the errors harmless.
E
We acknowledge that partition is an equitable doctrine which bestows
upon the trial court great flexibility in fashioning a remedy. However, that
discretion exists within the confines of a statutory scheme that came into
existence prior to statehood and continues in effect to this day.
It is easy to predict that on remand one or both of the parties will urge the
trial court to depart from a strict adherence to the statutory scheme. Because the

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issue was not briefed herein, we will refrain from opining on whether—or under
what circumstances—the trial court is free to do so.
However, if urged to so depart, the trial court may be well advised to seek
answers to—and enter factual findings and legal conclusions on—the following
related questions:
1. When the legislature has spoken and created a statutory mechanism to
resolve a particular type of dispute, under what circumstances may a trial court
properly depart from adherence to that scheme?
2. Recognizing that a partition action bestows great discretion upon a trial
judge and is equitable in nature, may the judge depart from the statutory scheme
in order to achieve the most equitable (“the best”) result?
3. Or may the trial court depart from the statutory scheme only when no
equitable result can be obtained by adherence thereto?
Because the legislature has spoken in this area of law, any decision to
depart from its duly enacted scheme should be supported by all necessary
factual findings and legal conclusions.
III
On remand, the trial court must take the necessary steps to partition the
property and the ownership interests thereto. As a single-family residence in a
single-family zone, statutory partition appears possible only by sale. See Friend,
92 Wn. App. at 804-05 (where partition in kind conflicts with local zoning
ordinances, division of property is prejudicial and partition by sale is the

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appropriate remedy). Any deviation from this result should be closely analyzed
pursuant to the discussion set forth in the preceding section of this opinion.
Reversed and remanded for further proceedings consistent with this
opinion.6
WE CONCUR:
6 In light of this decision, we need not consider Duarte’s request for an award of attorney
fees on appeal.