KO - Filed First Amended Complaint

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
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IN AND FOR THE COUNTY OF KING
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ANDREW KO, a married man acting on No. 17-2-27407-1 SEA
behalf of his separate estate;
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FIRST AMENDED COMPLAINT
Plaintiff,
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vs.
10 DARIN and LISA CHESTNUT, a marital
community, and STRANDVIK
11 HOMEOWNERS ASSOCIATION,
12 Defendants.
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DARIN and LISA CHESTNUT, a marital
14 community,
15 Third Party Plaintiffs,
16 vs.
17 STRANDVIK HOMEOWNERS
ASSOCIATION,
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Third Party Defendant.
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COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

JUDGMENT, AND TRESPASS AND DAMAGES 4th AND BLANCHARD BUILDING
Page 1 of 15 2101 4TH AVENUE, SUITE 1830,
WASHINGTON 98402
(206) 621-1110 - FACSIMILE (253) 572-1300
1 COMES NOW the Plaintiff, Andrew Ko, by and through his attorneys, Robert P.
2 Dickson and Daniel K. Walk of Dickson Frohlich PS, and by way of Complaint, alleges and
3 avers as follows:
4 I. PARTIES
5 1. Plaintiff Andrew Ko is a married individual who resides in California, and is the
6 owner of real property in Washington State that is the subject of this Complaint.
7 2. Defendants Darin and Lisa Chestnut (hereafter referred to as “the Chestnuts”)
8 are a marital community who own real property in King County that borders the Plaintiff.
9 3. Defendants Strandvik Homeowners Association (hereafter referred to as “the
10 HOA”) is the homeowners’ association in which the Plaintiff owns property subject to this
11 lawsuit and with whom he has a recorded membership agreement.
12 II. JURISDICTION AND VENUE
13 4. Plaintiff realleges and incorporates herein the preceding paragraphs of this
14 pleading as though set forth in full.
15 5. Jurisdiction and venue are appropriate in King County pursuant to RCW
16 4.12.010(1) because this matter involves real property located in King County, Washington.
17 III. FACTS
19 pleading as though set forth in full.
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1 7. In May of 1997, Plaintiff acquired title by Statutory Warranty Deed (Recorded
2 with the King County Auditor’s record number 9706110302), to the real property legally
3 described as follows:
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12 8. The property is commonly known as 17822 Southeast 40th Place, Bellevue, King
13 County, Washington (herein “Plaintiff’s Property”).
14 9. The Chestnuts own the neighboring home, located at 17828 Southeast 40th Place,
15 Bellevue, King County, Washington. Their property is legally described as follows:
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1 10. In 1997, the Plaintiff acquired title to his property. Prior to his ownership, a
2 predecessor-in-interest had installed an asphalt driveway along the eastern section of the
3 property. Below is an aerial depiction of the Plaintiff’s and Defendants’ homes:
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20 11. The Chestnuts acquired their property in 2014 and have direct access to Lake
21 Sammamish from their back yard, similar to all other properties along this street (SE 40th Place).
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1 12. Sometime in the past five (5) years a small fence was built by either the
2 Chestnuts, or their predecessors in interest, that closes in their side and back yard, thus blocking
3 their ability to access their own backyard down the side of their property. The Chestnuts, or
4 their predecessor in interest, built a gate in this small fence, facing Plaintiff’s Property, thus
5 requiring the Chestnuts to traverse Plaintiff’s Property in order to enter said gate and access
6 their own property. This was all done without permission from Plaintiff. As shown in the aerial
7 photos below taken from the King County GIS, no fence or gate is visible in 2013, but it is
8 visible in 2017.
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13. As stated above, this fence blocked the Chestnuts’ access to their own backyard
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on the western side of their property and necessitated that they trespass onto Plaintiff’s Property
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to either access their land through the aforementioned gate, or to trespass further down
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Plaintiff’s Property and go around their own fence further down the property line.
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WASHINGTON 98402
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1 14. When the Plaintiff became aware of this trespass, he asked the Chestnuts to stop
2 and offered them a license agreement or neighborly accommodation to continue utilizing his
3 property for them to access their own, but it was refused. The trespass persisted and Plaintiff
4 eventually installed a fence along his property line to protect his property interests. This was
5 done in the summer of 2016 as depicted by the following picture:
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15. To the extent that any access to the Plaintiff’s Property by the Chestnuts did
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occur, it was as a neighborly accommodation only, and not as the manifestation of an easement
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right.
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16. After Plaintiff constructed the fence, the HOA asked that it be removed and
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Plaintiff denied that request, asserting his rights as a property owner to maintain the integrity
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of his property and protect it from an ongoing trespass. At one point, the HOA approved the
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1 removal of Plaintiff’s fence without Plaintiff’s consent so long as the Chestnuts agreed to bear
2 any legal costs that resulted from said removal. However, the HOA later decided against
3 removing Plaintiff’s fence and the Chestnuts had it removed without the permission of either
4 the Plaintiff or the HOA as shown here:
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17. There is a 1926 floating easement serving the HOA that is ambiguous as to its
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location and intent. The pertinent easement description is as follows:
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1 In other words, the HOA sold the land to the then buyer, a predecessor in interest to the Plaintiff,
2 and reserved an easement for a “walk or roadway” that was to be “ten (10) feet wide over and
3 across the same.” This ambiguous language does not affix the easement to any particular
4 portion of Plaintiff’s Property, nor has the HOA ever taken any steps since 1926 to affix it to a
5 particular location. This ambiguous language also fails to specify what access the easement
6 intends – whether it was intended to run north and south to access the water and beach or to run
7 east and west to cross the property for other reasons as SE 40th Place did not yet exist at the
8 time.
9 18. No one, historically, has had any information and knowledge of the location of
10 this 1926 easement until the Chestnuts decided to use Plantiff’s driveway to access their side
11 and back yard; and now assumes the driveway is the 1926 easement for their convenience
12 without any documented evidence for the easement location. Chestnuts did not even know
13 about the 1926 easement as it was only contained in Plaintiff’s Warranty Deed. The HOA did
14 not have knowledge of nor a copy of the 1926 easement until it was provided in Plaintiff’s
15 request to terminate the easement in October, 2015.
16 19. The Chestnuts or their predecessors in interest blocked their own access to their
17 side and back yard. In fact, the HOA owns a large lot to the west of Plaintiff’s Property, directly
18 adjacent to the same, that provides ample water and beach access for the community, including
19 the Chestnuts.
20 20. The Chestnuts, however, now assert that the 1926 easement is affixed to the area
21 between their house and Plaintiff’s house, that it was intended for HOA members to use to
22 access the water and beach, and that they have a special right, not enjoyed by any other HOA

WASHINGTON 98402
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1 members to also use the easement to access their side and back yard and that the Plaintiff cannot
2 therefore build a fence on his property line.
3 21. In the alternative, the Chestnuts are claiming that they should also have access
4 across the Plaintiff’s property by virtue of a prescriptive easement despite the fact that they
5 cannot establish the necessary elements of a prescriptive easement claim.
6 22. Throughout this process, Plaintiff had requested that the HOA simply vacate the
7 1926 floating easement as no one was using it since Plaintiff’s purchase of the property in 1997.
8 The HOA determined that they weren’t even aware of its existence or location and that there
9 would be no issue vacating it. When the Chestnuts found out about the HOA’s plan to vacate
10 the easement however, they voiced their objection to the same and the HOA changed their mind
11 and refused to vacate the easement.
12 23. As part of the process for determining what to do about the easement and the
13 Plaintiff’s fence, the HOA called for a special meeting without following the procedure outlined
14 in the HOA’s governing documents. Namely, the special meeting was not made upon
15 application of at least ten (10) members of the HOA, nor was it ordered by the Board. If either
16 of those processes did take place, proper notice was not given of the time and place at least ten
17 (10) days before the meeting.
18 24. The HOA then held, in violation of the same governing documents, a special
19 meeting without the requisite notice to the members of the HOA, where the Chestnuts were
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21 25. The relevant portions of the governing documents of the HOA are as follows:
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WASHINGTON 98402
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26. The Chestnuts and a select few HOA members held a special meeting, without
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the knowledge or involvement of the Plaintiff or other HOA members, where they discussed
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and decided how they would treat the easement and the fence to the detriment of one HOA
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member and for the benefit of another, and in violation of due process.
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IV. CAUSES OF ACTION
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A. DECLARATORY JUDGMENT AS TO PRESCRIPTIVE EASEMENT
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27. Plaintiff realleges and incorporates herein the preceding paragraphs of this
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pleading as though set forth in full herein.
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28. Pursuant to RCW 7.24.010, courts of record within their respective jurisdiction
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shall have the power to declare rights, status and other legal relations, whether or not further
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relief is or could be claimed.
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29. Based on communiques from Chestnuts prior to the present action, and based on
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discovery to date, it is believed that they intend to assert a prescriptive easement right to traverse
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a portion of the Plaintiff’s property in order to reach their backyard.
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30. A prescriptive easement is not easily formed. In order to establish such a right,
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the claimant must prove that he or she used another person’s property in an open and notorious

WASHINGTON 98402
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1 manner, which was adverse to the title holder. This nonpossessory use must be continuous and
2 uninterrupted for a minimum of 10 years (as required under RCW 8.16.020).
3 31. The Plaintiff has owned his property for over 20 years (since 1997). At no time
4 does he, nor his renters, nor his property managers recall the Defendants—or their
5 predecessors-in-interest—traversing the Plaintiff’s property in the manner sufficient to
6 establish a permanent easement right. In fact, it has only been happening for the last five (5)
7 years at the most, based on the Chestnuts’, or their predecessor in interest’s, construction of the
8 fence that blocks access to their side and back yard.
9 32. Further, when the Plaintiff was made aware of the Chestnuts’ trespasses on his
10 property, he erected a fence to block any further trespass on August 3, 2016 until it was
11 unlawfully removed by the Chestnuts on or about August 17, 2017.
12 33. In other words, the Chestnuts cannot show that such use of the Plaintiff’s
13 property occurred for the requisite 10-year period. As a consequence, the Plaintiff’s title should
14 be quieted regarding the allegation by the Chestnuts that a prescriptive easement has been
15 established across a portion of his property.
16 B. TRESPASS
18 pleading as though set forth in full herein.
19 35. The Chestnuts have entered onto, and continue to enter onto, Plaintiff’s property
20 intentionally and without permission of the Plaintiff. Defendants’ continued access of
21 Plaintiff’s property constitutes trespass.
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1 36. Plaintiff has incurred damages resulting from Defendants’ actions in an amount
2 to be proven at trial.
3 C. DAMAGES UNDER RCW 4.24.630
6 37. The Chestnuts entered onto Plaintiff’s Property and wrongfully caused waste or
7 injury to the land and wrongfully injured personal property and improvements on the land by
8 removing Plaintiff’s fence while knowing that they had no authority to do so.
9 38. The Chestnuts are therefor liable for damages for the market value of the fence
10 and for the injury to the land and for the costs of restoring the same. Additionally, the Chestnuts
11 are liable for the Plaintiff’s costs and attorneys’ fees and other investigative costs.
12 D. DECLARATORY JUDGMENT AS TO VIOLATION OF THE STRANDVIK BYLAWS
15 40. Pursuant to RCW 7.24.010, courts of record within their respective jurisdiction
16 shall have the power to declare rights, status and other legal relations, whether or not further
17 relief is or could be claimed.
18 41. Plaintiff is entitled to a declaratory judgment that the HOA violated the
19 Strandvik bylaws by holding a special meeting without an order of the board or by written
20 demand by at least ten (10) HOA members and for not giving the requisite ten (10) days’ written
21 notice of said meeting.
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WASHINGTON 98402
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1 42. Based on this violation of the Strandvik Bylaws, Plaintiff has incurred numerous
2 costs and attorneys’ fees and is entitled to recover the same.
3 E. VIOLATION OF DUE PROCESS
6 44. The HOA violated Plaintiff’s right to Due Process by holding a special meeting
7 without notice, where they held discussions and made decisions affecting him and his property
8 without allowing him an opportunity to present his objections to their actions.
9 45. The HOA is therefore liable for damages to Plaintiff in an amount to be proven
10 at trial.
11 IV. PRAYER FOR RELIEF
12 WHEREFORE, Plaintiff, having asserted claims for relief now prays for judgment as
13 follows:
14 1. For an order quieting title in favor of the Plaintiff regarding the Defendants’
15 claims, or potential claims, to an easement across a portion of Plaintiff’s
16 Property; AND
17 2. For a declaratory judgment regarding the Chestnuts’ trespass; AND
18 3. For an award of damages resulting from Defendants’ trespass, in an amount to
19 be proven at trial; AND
20 4. For an award of damages pursuant to RCW 4.24.630 in an amount to be proven
21 at trial as well as reimbursement of Plaintiff’s costs and attorneys’ fees; AND
22 5. For a declaratory Judgment that the HOA violated the Strandvik Bylaws and are

WASHINGTON 98402
(206) 621-1110 - FACSIMILE (253) 572-1300
1 liable to Plaintiff for damages resulting from the same as well as for costs and
2 attorneys’ fees; AND
3 6. For an award of damages against the HOA for violation of Plaintiff’s Due
4 Process rights; AND
5 7. For an award of reasonable attorney’s fees pursuant to statute, contract, or in
6 equity, as applicable; AND
7 8. Any other and further relief the Court deems just and equitable.
8 DATED this ___ day of September, 2018.
9 DICKSON FROHLICH PS
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11 ROBERT P. DICKSON, WSBA No. 39770

DANIEL K. WALK, WSBA No. 52017
12 Attorneys for Plaintiff
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WASHINGTON 98402
(206) 621-1110 - FACSIMILE (253) 572-1300
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VERIFICATION
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I, ANDREW KO, certify and declare:
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I am a plaintiff in this action. I have read the foregoing pleading, have personal
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knowledge regarding the facts contained therein, know the contents thereof and believe the
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same to be true and correct.
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I certify and declare under penalty of perjury under the laws of the State of Washington
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that the foregoing is true and correct.
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DATED in _______________ (city), ________________(state), this day of
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________________ 2018.
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11 ANDREW KO
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WASHINGTON 98402
(206) 621-1110 - FACSIMILE (253) 572-1300

KO - Filed First Amended Complaint

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KO - Filed First Amended Complaint

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1

15 Third Party Plaintiffs,

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

5 1. Plaintiff Andrew Ko is a married individual who resides in California, and is the

7 2. Defendants Darin and Lisa Chestnut (hereafter referred to as “the Chestnuts”)

9 3. Defendants Strandvik Homeowners Association (hereafter referred to as “the

11 lawsuit and with whom he has a recorded membership agreement.

12 II. JURISDICTION AND VENUE

13 4. Plaintiff realleges and incorporates herein the preceding paragraphs of this

14 pleading as though set forth in full.

15 5. Jurisdiction and venue are appropriate in King County pursuant to RCW

18 6. Plaintiff realleges and incorporates herein the preceding paragraphs of this

19 pleading as though set forth in full.

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

13 County, Washington (herein “Plaintiff’s Property”).

15 Bellevue, King County, Washington. Their property is legally described as follows:

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

3 property. Below is an aerial depiction of the Plaintiff’s and Defendants’ homes:

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

5 done in the summer of 2016 as depicted by the following picture:

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

4 the Plaintiff or the HOA as shown here:

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

15 request to terminate the easement in October, 2015.

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

2 therefore build a fence on his property line.

5 cannot establish the necessary elements of a prescriptive easement claim.

11 and refused to vacate the easement.

17 (10) days before the meeting.

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

2 uninterrupted for a minimum of 10 years (as required under RCW 8.16.020).

5 predecessors-in-interest—traversing the Plaintiff’s property in the manner sufficient to

8 fence that blocks access to their side and back yard.

11 unlawfully removed by the Chestnuts on or about August 17, 2017.

15 established across a portion of his property.

18 pleading as though set forth in full herein.

20 intentionally and without permission of the Plaintiff. Defendants’ continued access of

21 Plaintiff’s property constitutes trespass.

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

3 C. DAMAGES UNDER RCW 4.24.630

5 pleading as though set forth in full herein.

12 D. DECLARATORY JUDGMENT AS TO VIOLATION OF THE STRANDVIK BYLAWS

14 pleading as though set forth in full herein.

17 relief is or could be claimed.

21 notice of said meeting.

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

2 costs and attorneys’ fees and is entitled to recover the same.

3 E. VIOLATION OF DUE PROCESS

5 pleading as though set forth in full herein.

8 without allowing him an opportunity to present his objections to their actions.

11 IV. PRAYER FOR RELIEF

15 claims, or potential claims, to an easement across a portion of Plaintiff’s

17 2. For a declaratory judgment regarding the Chestnuts’ trespass; AND

18 3. For an award of damages resulting from Defendants’ trespass, in an amount to

19 be proven at trial; AND

20 4. For an award of damages pursuant to RCW 4.24.630 in an amount to be proven

21 at trial as well as reimbursement of Plaintiff’s costs and attorneys’ fees; AND

COMPLAINT FOR QUIET TITLE, DECLARATORY DICKSON FROHLICH, PS

2 attorneys’ fees; AND

4 Process rights; AND

5 7. For an award of reasonable attorney’s fees pursuant to statute, contract, or in

6 equity, as applicable; AND