Opinion
No. 54636-8-I
Filed: August 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-2-27300-7. Judgment or order under review. Date filed: 07/13/2004. Judge signing: Hon. Cheryl B Carey.
Counsel for Appellant(s), Mark Alan Rowley, Attorney at Law, 2nd Seneca Bldg 18 Fl, 1191 2nd Ave, Seattle, WA 98101-3438.
Lori Salzarulo, Garvey Schubert Barer, 2nd Seneca Bldg 18 Fl, 1191 2nd Ave, Seattle, WA 98101-2939.
Counsel for Respondent(s), Elena Luisa Garella, Attorney at Law, 927 N Northlake Way Ste 301, Seattle, WA 98103-3406.
Mark Timothy Higgins, Higgins Geyer Lock PLLC, 1218 3rd Ave Ste 2500, PO Box 12860, Seattle, WA 98111-4860.
Property owners generally have the right to enforce restrictive covenants affecting their real property. Here, Thomas and Susan Fife (Fife) failed to establish any genuine issue of material fact respecting either design approval of landscaping plans or their affirmative defenses to the enforcement of the covenants by David and Robin Nelson (Nelson) and Michael and Kay Lester (Lester). Moreover, Nelson and Lester were entitled to judgment as a matter of law at the time of the hearing of the parties' cross motions for summary judgment. Thereafter, the trial court did not abuse its discretion in denying Fife's motion to amend pleadings to add the affirmative defense of abandonment. The awards of attorney fees below and on appeal are mandated by the fee provision in the Declaration of Covenants, Conditions, Restrictions, and easements for Lakemont. We affirm and award attorney fees on appeal to Nelson and Lester.
Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994) (citing Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 815, 854 P.2d 1072 (1993); Ronberg v. Smith, 132 Wash. 345, 349, 232 P. 283 (1925)).
We deny the Nelson and Lester Motion for Supplemental Brief dated April 29, 2005.
In August 1990, the then owner of property now known as Lakemont, a planned community, recorded the Declaration of Covenants, Conditions, and Restrictions dated July 1990 (CCRs). The then owner also recorded a document titled 'Lakemont Design Review Criteria' (DRC). The Association recorded Articles sec. 1-9 of the DRC. However, Article sec. 10 was adopted, but never recorded.
Fife purchased Lot 88 in 1995. A stand of trees, that appears to have been planted in 1992-1993 on lot 88 by Fife's predecessors, separates that lot from the Nelson and Lester lots. The trees have since grown to heights that partially block views from the latter lots.
In 1996 and 1997, respectively, Nelson and Lester acquired their lots in Lakemont. In the summer of 2001, they first complained that the height of the trees on the Fife property blocked their views.
In 2003, Nelson and Lester commenced this action, claiming that the trees on Lot 88 violated the CCRs. Fife counterclaimed for declaratory relief and asserted affirmative defenses: statute of limitations, laches/acquiescence, failure to state a claim upon which relief could be granted, and failure to name an indispensable party.
Following the parties' cross motions for summary judgment, the court continued the case pursuant to CR 56(f) to allow discovery. At the hearing on the motions that followed, the trial court denied Fife's motion and granted summary judgment to Nelson and Lester. Later, the court denied Fife's motion to amend its answer to add the affirmative offense of abandonment. The court further ordered removal of certain trees from the Fife lot, the order was stayed pending appeal.
Fife appeals.
SUMMARY JUDGMENT
Fife argues two broad propositions to overturn the summary judgment order before us. First, they contend they were entitled to summary judgment on the question of whether the design review board designated in the CCRs approved a landscaping plan that included the trees that are the subject of this action. Second, they contend that one or more of their affirmative defenses should have precluded summary judgment. Neither of these arguments is persuasive for the reasons we address, in turn.
Design Review and Approval of Landscaping
Fife specifically asserts that the record shows that the review board designated in the CCRs approved 'final' plans for lot 88, which by virtue of language in the DRC, necessarily included approval of landscaping the trees at issue here. We disagree.
We will affirm summary judgment if no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. 'All facts and reasonable inferences are considered in the light most favorable to the non-moving party and all questions of law are reviewed de novo.'
Mountain Park Homeowners, 125 Wn.2d at 341 (citations omitted).
Here, Fife points to a portion of the records of the review board and notes that a document there states that 'final' approval of plans for Lot 88 was issued in February 1992. From this, Fife reasons that such approval must have included approval of a landscaping plan, citing sec. 4.3(a) of the DCRs. Fife also appears to argue that because the review board allegedly encouraged planting of additional trees in October 1993, it approved the trees that are the subjects of this action.
Starting with the latter of these two arguments, we note that Fife, as the non-moving party in the summary judgment motion before us, is entitled to have all facts and reasonable inferences considered in the light most favorable to them. But the fact that the review board encouraged planting of trees, without more, does not create a genuine issue of material fact regarding approval of the trees at issue in this case. Rather, whether the review board even contemplated the trees here is nothing more than speculation. Thus, the October 1993 actions of the review board do not create a genuine issue of material fact for purposes of summary judgment. Applying the same review standard to Fife's first argument, we also fail to see any genuine issue of material fact. It is true that the page that Fife identifies does indicate 'final' plan approval. But the very next page of the record, clarifies that landscaping was not among the items approved. For example, while the site plan, architecture, and building height items on that page are checked as 'ok,' the landscaping item does not have 'ok' listed next to it. Thus, a fair reading of the document supports the view that landscaping was not among the items the review board approved in March 1992. Because there is no other evidence that Fife identifies to support their argument, we conclude that the design review board did not approve any landscaping plan for the trees that are the subjects of this dispute.
Clerk's Papers at 441.
Clerk's Papers at 442.
Statute of Limitations
For the first time at oral argument, Fife argued that Nelson and Lester failed to timely bring this action under RCW 4.16.040, the six year statute applicable to actions on written contracts. Nelson and Lester correctly objected, pointing out that Fife failed to argue below that the complaint was untimely. Upon our close review of the record, we agree that Fife failed to preserve this argument below. Accordingly, we do not address either the applicable statute of limitations or when such statute accrued in this case.
RAP 2.5 (a); Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983).
Laches
Fife also argues that the doctrine of laches required dismissal of the Nelson and Lester complaint and prevented them from obtaining injunctive relief. We again disagree.
Laches may bar an action where the plaintiff (1) knows or reasonably should know of the cause of action, (2) unreasonably delays in commencing the action, and (3) causes damage to the defendant as a result. The doctrine of laches does not apply here for at least two reasons. First, there is no evidence of unreasonable delay. Nelson and Lester asked Fife to voluntarily remove the trees in 2001 and 2002, but Fife refused. Nelson and Lester neither knew nor had reason to know of their cause of action until 2002 when Fife refused to comply with the Association's request for retroactive compliance with the CCRs. Nelson and Lester then commenced suit in 2003. Second, there is no evidence that Fife was harmed by any delay on the part of Nelson and Lester.
Buell v. City of Bremerton, 80 Wn.2d 518, 522, 495 P.2d 1358 (1972).
Accordingly, as a matter of law, the doctrine of laches does not apply here.
Acquiescence
Fife argues that the defense of acquiescence bars the claims of Nelson and Lester because the developer and the Association acquiesced in the Fife landscaping and other violations of the CCRs. We disagree.
Fife's argument is not persuasive for two reasons. First, Fife fails to present any authority demonstrating that acquiescence by the developer and the Association would constitute acquiescence by Nelson and Lester. Second, the elements of acquiescence, which are Fife's burden to prove, are not met here.
Acquiescence may be a valid affirmative defense in cases involving violations of restrictive covenants:
The defense of acquiescence arises when the plaintiff has failed to enforce a restriction against other violators and then seeks to enforce the same type of restriction against the defendant. For example, when owners of a subdivision knowingly and without objection permitted other grantees within the subdivision to violate setback restrictions that the owners sought to enforce against the other grantees, equity would not assist the owners in enforcing the restrictions.
5 Richard R. Powell, The Law of Real Property, sec. 679[1] (rev. ed. 1991), at 60-133-35.
In order to prove acquiescence, the burden was on Fife to provide evidence of: (1) Nelson and Lester's full knowledge of the facts, (2) Nelson and Lester's duty to speak, (3) Nelson and Lester's intent to mislead, and (4) Fife actually being misled. The duty to speak arises when the facts are 'peculiarly within the knowledge of one person and could not be readily obtained by the other[.]'
Oates v. Taylor, 31 Wn.2d 898, 904, 199 P.2d 924 (1948).
Here, Fife fails to provide any evidence that Nelson and Lester had any intent to mislead Fife. Accordingly, as a matter of law, the affirmative defense of acquiescence must fail.
Fife relies on the examples in Ronberg v. Smith and Tindolph v. Schoenfeld Bros., to argue Nelson and Lester's acquiescence. These cases, however, are distinguishable from the situation here.
132 Wash. 345, 232 P. 283 (1925).
157 Wash. 605, 289 P. 530 (1930).
The plaintiff in Ronberg sued in 1923 to enforce 1906 residential covenants in a neighborhood near the University of Washington. There, two restaurants, a store, boarding houses and several fraternity and sorority houses had been built and operating for 'some years.'
Ronberg, 132 Wash. at 346-47.
The court observed that the restriction would expire in three years and concluded that the plaintiff was barred from enforcing the covenant on a theory of acquiescence. There, the plaintiff 'stood by without protest while a substantial number of persons built and for a considerable time maintained structures and businesses that violate the restriction[.]'
Ronberg, 132 Wash. at 350.
In Tindolph, this court recognized the rule that, where a substantial part of the property has been improved in violation of restrictive covenants in the deed, equity will not permit a plaintiff to enforce the restrictions against one who is building in further violation of such restrictions, the reason for such decision being, among others, that a considerable portion of the property had already been permitted to violate the restrictions.
Tindolph, 157 Wash. at 611-12.
Here, the planting and growth of the Fife trees is not similar to the construction and acquiescence to numerous and obvious, non-conforming structures. The plaintiffs here did not stand by while a substantial number of persons engaged in landscaping that violated the restrictions, nor is the covenant set to expire. Ronberg does not apply.
In Tindolph, a restrictive covenant limited development to one residence per lot. The plaintiffs obtained an injunction that prevented the defendant from constructing a second house and required removal of a garage. The court of appeals reversed the injunction, concluding that the plaintiff had acquiesced to the building. However, the court concluded that the restrictions could not be applied because a common plan or scheme did not exist since the original vendor conveyed a significant number of lots free of any restrictions.
Tindolph, 157 Wash. at 606.
Tindolph, 157 Wash. at 608.
Here, there is no absence of a common scheme or plan. Rather, all lots are subject to the Declaration. Accordingly, Tindolph does not apply here. In sum, we conclude that the affirmative defense of acquiescence does not apply.
Amendment of Pleadings
Fife next argues that the trial court abused its discretion by denying the motion to amend its answer to include the defense of abandonment according to CR 15(a). We disagree.
CR 15(a) allows a party to amend its complaint before an answer has been filed:
[o]therwise, a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
'The disposition of motions to amend the pleadings is discretionary with the trial court, and its refusal to permit such an amendment will not be overturned except for manifest abuse of discretion.' However, in considering a motion to amend, the trial court may consider whether the new claim is futile. We may reverse a trial court's ruling on a motion to amend a pleading only for a manifest abuse of discretion. Abandonment and acquiescence for purposes of this analysis are parallel claims. As we have already explained, Nelson and Lester did not acquiesce to the violations of which they complain. Under these circumstances, to allow the amendment of pleadings to add the substantially identical defense of abandonment would have been futile. The court did not abuse its discretion in denying this motion to include the affirmative defense of abandonment.
Lincoln v. Transamerica Inv. Corp., 89 Wn.2d 571, 577, 573 P.2d 1316 (1978) (citing Weihs v. Watson, 32 Wn.2d 625, 629, 203 P.2d 350 (1949)).
Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 142, 937 P.2d 154, 943 P.2d 1358 (1997) (citing MacLean v. First N.W. Indus., 96 Wn.2d 338, 345, 635 P.2d 683 (1981); Doyle v. Planned Parenthood, Inc., 31 Wn. App. 126, 131, 639 P.2d 240 (1982)).
Lincoln, 89 Wn.2d at 577 (citing Weihs, 32 Wn.2d at 629).
Injunctive Relief
Fife argues that the trial court improperly considered view protection in granting Nelson and Lester relief because view protection in DRC sec. 10 is not incorporated into the covenants through the DRCs and because sec. 10 of the DRCs was never recorded. Fife also argues he did not have notice of sec. 10. We disagree with both points.
Because a real covenant is an 'interest' in real property and also affects title, an instrument containing a real covenant must be recorded if the burden is to bind the covenantor's successors who are not bona fide purchasers. A successor who is without notice of the real covenant and who has given value will take free of the burden of the covenant if it is not recorded. However, a leading real estate expert opines:
17 William B. Stoebuck and John W. Weaver, Washington Practice, Real Estate: Property Law, sec. 3.16 at 151.
Stoebuck and Weaver, Washington Practice, Real Estate: Property Law, sec. 3.16 at 151.
The express grant of authority in previously recorded CCRs to adopt rules affecting individual owners provides inquiry notice that such rules exist and/or may be adopted or amended in the future, and that such rules may be enforced against individual owners. A purchaser of a lot in the subdivision is given recorded notice by the recording of the CCR's that the Board will adopt, or has adopted, its original Design Review Criteria, and may, and likely will, amend and add to such Criteria from time to time.
Clerk's Papers at 954 (Declaration of William B. Stoebuck).
This constructive notice approach gives homeowners' associations the ability to adopt new rules or amendments that are enforceable against existing lot owners without having to record each restriction on building and landscaping in the planned community.
Here, there is no dispute that the declaration and DRC 1-9 were recorded. Moreover, the DRCs clearly gave notice of the right to adopt further declarations. In short, Fife had constructive notice that such a DRC could be recorded because of the language in the original recorded DRCs.
Incorporation of View Protection in the Covenants
Fife cites Day v. Santorsola for the proposition that covenants that enforce view restrictions cannot be enforced under the declaration through the DRCs because the declaration does not incorporate view protection. We disagree.
118 Wn. App. 746, 76 P.3d 1190 (2003), review denied, 151 Wn.2d 1018 (2004).
A court must construe restrictive covenants by discerning the intent of the parties as evidenced by clear and unambiguous language in the document. The court must consider the document in its entirety.
Burton v. Douglas County, 65 Wn.2d 619, 621-22, 399 P.2d 68 (1965); Lenhoff v. Birch Bay Real Estate, Inc., 22 Wn. App. 70, 73, 587 P.2d 1087 (1978); Leighton v. Leonard, 22 Wn. App. 136, 141, 589 P.2d 279 (1978).
Burton, 65 Wn.2d at 622.
Here, sec. 3.8 of the CCRs incorporates the DRC into the declaration, stating: 'all additions to or changes or alterations in such building or structure must comply with design review criteria for Lakemont.' DRC 10.6.h. states: 'For all areas south of Lakemont Blvd. S.E., selection of and maintenance of introduced vegetation shall be designed to preserve view from other residences.' The CCRs and DRC here are distinguishable from the CCRs in Day. In that case, there was no view protection provision related to the construction of buildings in the covenants. Here, the declaration adopts and requires compliance with the DRC which clearly requires that protection of views from introduced vegetation. We conclude that the restrictions regarding view are incorporated into the declaration and are enforceable.
Landscaping is defined as a structure in 3.8.2 ('Declarant shall review in conformance with the design review criteria proposed buildings, fences, walls, landscaping or other structures.') (emphasis added).
(Emphasis added.)
Remedy
Fife next argues that the trial court erred in ordering the Fifes to cut down their trees to enhance the Nelson and Lester views because the trial court usurped the Lakemont Review Board's role. We hold the court properly exercised its discretion to impose a remedy for the violation of the covenants.
Restrictive covenants are enforceable by injunctive relief. Here, the DRCs contain a clear statement requiring view preservation in DRC sec. 10. Fife relies on Riss v. Angel, for the proposition that the court should not substitute its judgment for that of the Board, particularly where a covenant permits a decision based on aesthetics and harmony with the neighborhood. There is no substitution of judgment here. Rather, the court imposed a remedy for the clear violation of the covenants.
Piepkorn v. Adams, 102 Wn. App. 673, 684, 10 P.3d 428 (2000).
131 Wn.2d 612, 629, 934 P.2d 669 (1997).
Here, sec. 9.1 of the declaration states that, 'any Owner, shall have the right to enforce, by any appropriate proceeding [in] law or in equity, all covenants, conditions, restrictions, reservations, liens, and changes now or hereafter imposed by the provisions of this Declaration.' Fife refused to comply with a retroactive design review. Because Fife refused to comply with the request for retroactive design review and refused to comply with the covenants, Nelson and Lester were allowed to turn to the court to enforce the declaration. Accordingly, the court did have the power to enforce compliance with the declaration.
Clerk's Papers at 497.
Compliance with the DRC
Fife next argues that its landscaping complies with sec. 10 because it does not exceed a 30 foot residential height limit. We disagree.
Fife argues that DRC sec. 10.6.h does not place a restriction on views, but requires only that vegetation not exceed the residential height limit. Fife relies on Peterson v. Koester where a review committee imposed a height restriction that the court of appeals concluded was improper because it was more burdensome than specified in the covenant. However, Peterson is distinguishable from the case here. The covenants in Peterson did not contemplate view preservation. Here, the CCRs requires lowering the height of structures including landscaping for view protection through DRC sec. 10.6.h.
122 Wn. App. 351, 354, 92 P.3d 780 (2004).
DRC 10.6.h states: For all areas of Lakemont Blvd. S.E., selection of and maintenance of introduced vegetation shall be designed to preserve views from other residences. For lots where this is a factor, introduced plant materials shall be selected which will not exceed the residential height or maintenance of height shall be specified at the time of [Design Review Board] review of plans.
The DRC shows an intent to preserve views and points out the requirement that vegetation shall never exceed residential height and may be required to be lower than the residential height on properties where preservation of views from other residences is an issue. Here, Fife failed to comply with the height limits imposed by the CCRs and DRC.
Retained Vegetation Area
Fife also argues that the court improperly ordered the removal of the trees because the trees are in a Retained Vegetation Area (RVA) and may not be removed without approval by the City of Bellevue. This argument is also unpersuasive.
While it is true that approval to remove trees from the RVA requires permission from the City of Bellevue, Fife has not sought such approval. That the City would deny the request is speculative. Possible disapproval by the City is simply not an issue that is before us. Violation of the terms of the CCRs is.
Privacy and Separation
Fife finally argues that removal of the trees would eliminate privacy and separation between the Fife and Nelson and Lester property as encouraged by DRC 10.6.c. This argument is entirely speculative. The trees violate the covenant respecting view protection. There is nothing in the record to substantiate that the removal of the trees, as the court ordered, would violate some other provision in the CCRs.
Balancing Equities
Fife next argues that the remedy of cutting the trees down should have been denied based on a balancing of the equities because it is an innocent party. We disagree.
'[B]alancing the equities . . . is reserved for the innocent defendant who proceeds without knowledge or warning that his structure encroaches upon another's property or property rights.' A landowner has acted innocently when he or she attempted to comply with the restrictive covenant; and his and her violation of it was unintentional.
Bach v. Sarich, 74 Wn.2d 575, 582, 445 P.2d 648 (1968).
Holmes Harbor Water Co. v. Page, 8 Wn. App. 600, 606, 508 P.2d 628 (1973).
Fife cites Holmes Harbor Water Co. v. Page for the proposition that as an innocent party, the court must apply the doctrine of balancing the equities. However, Fife has made no attempt to comply with the restrictive covenant. Accordingly, Fife cannot be considered an innocent party and the doctrine of balancing equities cannot apply here.
Fife also cites Lenhoff v. Birch Bay Real Estate, Inc., and Mariners Cove Beach Club v. Kairez, for the proposition the court can balance equities when abandonment and delay are found to constitute a waiver of the right to enforce covenant. These cases are irrelevant to this analysis of balancing equities as no abandonment or delay has taken place here.
93 Wn. App. 886, 890-91, 970 P.2d 825 (1999).
Attorney Fees
Fife seeks a reversal of attorney fees awarded to Nelson and Lester below, and an award of trial fees to him. Neither request is supportable. 'A party is entitled to attorney fees on appeal if a contract, statute, or recognized ground of equity permits recovery of attorney fees at trial and the party is the substantially prevailing party.'
Hwang v. McMahill, 103 Wn. App. 945, 954, 15 P.3d 172 (2000), review denied, 144 Wn.2d 1011 (2001).
Here, sec. 11.4 permits recovery of fees and costs for the prevailing party 'in a suit or action to enforce any provision of this Declaration.' Nelson and Lester prevailed below and also on appeal. They are entitled to an award of fees on appeal, subject to compliance with RAP 18.1.
We affirm the order granting summary judgment and the order denying the motion to amend.
GROSSE and COLEMAN, JJ., Concur.