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White v. Wilhelm, 34 Wn. App. 763, 665 P.2d 407 (1983).
[No. 9724-5-I. Division One. May 25, 1983.]
DEANNA WHITE, ET AL, Appellants, v. GLEN
WILHELM, ET AL, Respondents.
[1] Appeal and Error - Findings of Fact - Review -
Harmless Error. Any error in a finding of fact is harmless if the finding
was not material to the trial court's decision.
[2] Appeal and Error - Review - Conclusions Denominated as Findings
- Effect. Conclusions of law incorrectly labeled as findings of fact are
subject to review as conclusions of law.
[3] Covenants - Single Dwelling - House Addition. A structure attached
to and made a part of an existing house does not violate a covenant
prohibiting the construction of any building other than a single-family
dwelling.
[4] Covenants - Enforcement - Estoppel - Previous Violations. A
restrictive covenant applicable to an entire tract of land is not
enforceable if it has been habitually and substantially violated or if the
party seeking its enforcement has violated it.
[5] Appeal and Error - Findings of Fact - Review - In General. Findings
of fact which are supported by substantial evidence
764 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
will not be disturbed on appeal.
[6] Covenants - Construction - Ambiguity - What Constitutes - Effect.
Extrinsic evidence is admissible to determine the intent of the drafters
of an ambiguous restrictive covenant, i.e., one capable of being
understood as having at least two meanings.
[7] Covenants - Construction - Scope of Restriction. Restrictive
covenants are strictly construed in favor of the free use of property and
will not be extended by implication to encompass any use not clearly
expressed.
[8] Injunction - Costs - Attorney Fees - Wrongful Injunction - Scope. A
party may recover attorney fees incurred in dissolving wrongful
injunctive relief. Fees incurred for other attorney services are not
recoverable absent a contract, statute, or applicable basis in equity.
Nature of Action: Action to prevent construction of a
swimming pool enclosure.
Superior Court: The Superior Court for King County,
No. 80-2-14440-5, F. A. Walterskirchen, J. Pro Tem., entered a
judgment in favor of the defendants on December 8, 1980.
Court of Appeals: Holding that restrictive covenants applicable to the
defendants' land either had been abandoned or were not violated and
that the defendants were entitled to attorney fees incurred in pretrial
proceedings to dissolve a temporary restraining order, the court affirms
the judgment and remands for an attorney fee award.
Francis, Lopez & Ackerman and Peter D. Francis, for
appellants.
Bogle & Gates and Helen Harvey, for respondents.
CALLOW
CALLOW, J.-Deanna White and the marital community
of Robert and Marlyce Dixon, appeal a judgment denying them
injunctive relief and/or damages for the alleged violation of certain
residential restrictive covenants by the marital community of Glen and
Carol Wilhelm. The Wilhelms cross-appeal the judgment of the trial
court denying them attorney's fees for damages in defense of this
action. Three
May 1983 WHITE v. WILHELM 765
34 Wn. App. 763, 665 P.2d 407
issues are presented:
1. Whether substantial evidence supports the trial court's finding that
the purpose of the restrictive covenants was to obtain FHA financing;
2. Whether the construction of a swimming pool enclosure by the
Wilhelms is in violation of the Malabar Hill covenants, thereby requiring
a permanent injunction of the construction;
3. Whether the Wilhelms should be granted attorney's fees for
damages incurred as a result of their defense of this action.
The parties to the instant action, Deanna White, Robert B. Dixon,
Marlyce Dixon, Glen Wilhelm, and Carol Wilhelm all reside adjacent to
each other in a subdivision in King County known as Malabar Hill
Division 1. In 1962, Don Jacobs and Robert Yelland, the developers of
the subdivision, filed an instrument containing residential area
covenants (Malabar Hill covenants) when subdividing the property for
residential construction. There is no dispute that the parties are subject
to these covenants.
The Malabar Hill covenants generally restrict land use, building type,
architectural style, cost, quality, size, location, and access to homes
built within the subdivision. They further provide that building plans,
specifications, architectural style, and other specified items must be
approved by the Architectural Control Committee (Committee) prior to
construction. The Committee was originally comprised of Don Jacobs
and Robert Yelland, the developers, and Allen Hill, a consulting
engineer, but has not functioned for the past several years.
This dispute arose in August of 1980 when the Wilhelms began
construction of an enclosure for their swimming pool so that it could be
used year round. The Wilhelms had installed and completed the pool in
February of 1980 in response to a doctor's recommendation that Carol
Wilhelm swim on a regular basis as treatment for her rheumatoid
arthritis. The pool is located immediately adjacent to the Wilhelms'
house, and there is no contention that the
766 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
swimming pool, by itself, is in violation of the restrictive covenants.
However, when construction of the pool enclosure continued over the
objection of White and the Dixons, they filed this lawsuit seeking an
injunction and/or damages. On September 25, 1980, the Wilhelms were
served with a temporary restraining order and order to show cause
enjoining them from further construction of the pool enclosure. They
immediately ceased construction of the pool enclosure. At the time of
trial, the Wilhelms had spent approximately $14,000 for the cost of the
enclosure and expected to spend another $8,500-$9,000 to complete
the addition.
Following trial, the trial court entered judgment denying White's and the
Dixons' request for injunctive relief, damages, and attorney's fees and
dismissed the action. The trial court further denied the Wilhelms'
counterclaim for attorney's fees as damages for defending the action.
The first issue is whether substantial evidence supports the finding that
the purpose of the restrictive covenants was to obtain financing.
Initially, White and the Dixons challenge the trial court's finding of fact
that:
The restrictive covenants on Malabar Hill Division No.
1 (Exhibit 1) were drawn up in the early 1960's for the purpose of
qualifying homes within the development for FHA financing.
The finding is supported by substantial evidence and will not be
disturbed on appeal. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d
190, 199, 570 P.2d 1035 (1977); Thorndike v. Hesperian Orchards,
Inc., 54 Wn.2d 570, 343 P.2d 183 (1959).
[1] In any event, the finding was not material to the decision of the trial
court and its entry not grounds for reversal. See State v. Craig, 82
Wn.2d 777, 784, 514 P.2d 151 (1973); W.L. Reid Co. v. M-B
Contracting Co., 46 Wn.2d 784, 791, 285 P.2d 121 (1955); James S.
Black & Co. v. P & R Co., 12 Wn. App. 533, 537, 530 P.2d 722 (1975);
Stuart v. Consolidated Foods Corp., 6 Wn. App. 841, 845,
May 1983 WHITE v. WILHELM 767
34 Wn. App. 763, 665 P.2d 407
496 P.2d 527 (1972).
The second issue is whether the construction of a swimming pool
enclosure by the Wilhelms is in violation of the Malabar Hill covenants,
thereby requiring a permanent injunction of such construction.
Burton v. Douglas Cy., 65 Wn.2d 619, 621-22, 399 P.2d 68 (1965)
stated the recognized principles for construing restrictive covenants:
(1) The primary objective is to determine the intent of the parties to the
agreement, and, in determining intent, clear and unambiguous
language will be given its manifest meaning. (2) Restrictions, being in
derogation of the common-law right to use land for all lawful purposes,
will not be extended by implication to include any use not clearly
expressed. Doubts must be resolved in favor of the free use of land.
(3) The instrument must be considered in its entirety, and surrounding
circumstances are to be taken into consideration when the meaning is
doubtful.
(Citations omitted.)
White and the Dixons contend by construction of their swimming pool
enclosure that the Wilhelms are in direct violation of three specific
provisions of the Malabar Hill covenants, to wit, sections III A, III B, and
III D. We turn to a discussion Of these covenants.
First, White and the Dixons contend that the Wilhelms have violated
section III A of the Malabar Hill covenants, since the construction of the
swimming pool enclosure creates a second building separate and
distinct from the existing dwelling and is not merely an addition to the
Wilhelms' home.
Section III A states:
No lot shall be used except for residential purposes. No building shall
be erected, altered, placed, or permitted to remain on any lot other
than one detached single-family dwelling not to exceed two and
one-half stories in height and a private garage for not more than four
cars. [2] The trial court found that "the defendants' enclosed
swimming pool is not a separate building but is an addition
768 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
to their single-family dwelling. "The definition of what constitutes a
"single-family dwelling" and whether a structure constructed adjacent to
such a dwelling is a component thereof or whether it is a separate
"building" is to some extent a legal, not a factual issue. Nonetheless,
"[f]indings of fact that are actually conclusions of law will be treated as
such," and are subject to appellate review. Artz v. O'Bannon, 17 Wn.
App. 421, 425, 562 P.2d 674 (1977); see Woodruff v. McClellan, 95
Wn.2d 394, 396, 622 P.2d 1268 (1980).
[3] Generally, a restrictive covenant which limits a lot to "one
single-family dwelling" prohibits an owner from building more than one
residential structure on the lot and from using that structure to house
more than one family. Collins v. Goetsch, 59 Hawaii 481, 583 P.2d 353
(1978); see 20 Am. Jur. 2d Covenants, Conditions, and Restrictions SS
196 (1965). What constitutes a "building" has been traditionally defined
"as a structure or edifice enclosing a space within its walls, and usually
covered with a roof", Annot., What Constitutes a "Building" Within
Restrictive Covenant, 18 A.L.R.3d 850, 852 (1968), but "whether a
particular structure is a building in violation of a restriction depends
upon the wording of the restriction, strictly construed, under the facts of
the particular case." 20 Am. Jur. 2d, supra at SS 194. However, where
an addition to a home is not separate and distinct so that it has the
appearance of a separate building, it will not violate a restrictive
covenant against building more than one structure on a lot. Tate v.
Moran, 264 Pa. Super. 540, 400 A.2d 217, 220 (1979); see Shapiro v.
Levin, 223 Pa. Super. 535, 302 A.2d 417 (1973).
The record supports the conclusion that the enclosure is an addition to
the Wilhelms' home and is not a separate building. The enclosure is to
be sided with cedar drop siding similar to the house, with windows,
doors, and trim similar to the house. It will be the same color as the
house. It is a part of the house and is not separate. The Wilhelms felt
the enclosure was an addition to their home and filed the application
for the building permit based on that belief. The enclosure is entered
through the Wilhelms'
May 1983 WHITE v. WILHELM 769
34 Wn. App. 763, 665 P.2d 407
recreational room, and the enclosure and recreational room are
adjoining rooms like any other room in the house. There is no
separation between the house and pool enclosure. Since the swimming
pool enclosure was built as a part of the house and not as a separate
structure distinct from the Wilhelms' home, its construction is not in
violation of section III A of the Malabar Hill covenants.
Second, White and the Dixons contend that the Wilhelms violated
section III B of the Malabar Hill covenants by not getting approval of the
swimming pool enclosure by the Committee prior to construction.
Section III B states in part:
No building shall be erected, placed, or altered on any lot until the
construction plans and specifications and a plan showing the location
of the structure have been approved by the Architectural Control
Committee as to the quality of workmanship and materials, harmony of
external design with existing structures, and as to location with respect
to topography and finish grade elevation. No fence or wall shall be
erected, placed or altered on any lot nearer to any street than the
minimum building setback line unless similarly approved. [4] There is
no dispute that the Wilhelms did not get
approval of the Committee prior to construction. However, "[i]f a
covenant which applies to an entire tract has been habitually and
substantially violated so as to create an impression that it has been
abandoned, equity will not enforce the covenant." Sandy Point Imp. Co.
v. Huber, 26 Wn. App. 317, 319, 613 P.2d 160 (1980); see Reading v.
Keller, 67 Wn.2d 86, 90, 406 P.2d 634 (1965).
In subdivision cases, where the "common plan" has broken down due
to substantial unchecked prior violations of the restrictions within the
subdivision, the covenants may be deemed to have been terminated by
abandonment. See e.g. Mount Baker Park Club v. Colcock, 45 Wn.2d
467, 275 P.2d 733 (1954); St. Lukes v. Hale's, 13 Wn. App. 483, 534
P.2d 1379 (1975); 5 POWELL ON REAL PROPERTY Para. 683 (1977).
A few violations will not suffice to constitute an abandonment, the plan
must
770 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
have been "habitually and substantially violated." Mount
Baker Park Club v. Colcock, supra.
Washington State Bar Ass'n, Real Property Deskbook SS 15.21
(1979). Applicability of this doctrine, which is based on estoppel, is a
factual determination. Sandy Point Imp. Co. v. Huber, supra; Bersos v.
Cape George Colony Club, 4 Wn. App. 663, 484 P.2d 485 (1971).
Further, "one who has violated a building restriction cannot enforce a
building restriction against others." Reading v. Keller, supra at 89.
[W]here a restriction has been violated by a substantial number of
property owners other than the defendant, and especially where the
plaintiff himself is one of the violators, a mandatory injunction requiring
removal of the offending structure will not be granted.
(Footnotes omitted.) 20 Am. Jur. 2d, supra at SS 331.
As for the misconduct of the plaintiff, we note that there was evidence
at trial tending to show that the requirement of prior approval of
building plans had been habitually and substantially violated over a
long period of time. The nonenforcement of these provisions
diminishes the meritoriousness of the conduct of the plaintiffs in
charging [the defendant] with violation of these restrictions.
Lenhoff v. Birch Bay Real Estate, Inc., 22 Wn. App. 70, 76, 587 P.2d
1087 (1978).
[5] The trial court made the following findings:
3. There has been no Architectural Control Committee in existence for
several years.
4. There have been numerous violations of the restrictive covenants in
Malabar Hill Division No. 1. Three houses have been built on lots 3, 5,
and 17 without approval of the Architectural Control Committee as is
required by III.B. of the covenants.
5. The plaintiffs are not in a position to obtain
equitable relief from the court such as that for which they are asking.
Plaintiffs Dixon's house (lot number 17) was built without approval of
the Architectural Control Committee by their predecessors, the former
owners of the house. Plaintiff White's violations of the covenants
include:
May 1983 WHITE v. WILHELM 771
34 Wn. App. 763, 665 P.2d 407
a. Alteration of the house deck without approval of
the Architectural Control Committee;
b. Addition of a storage shed with a white aluminum
corrugated roof on the south side of plaintiff White's house without
approval of the Architectural Control Committee, and within five feet to
the side line (which is in violation of the King County Code) . . .
These findings are supported by substantial evidence and will not be
disturbed on appeal. Seattle-First Nat'l Bank v. Brommers, supra;
Thorndike v. Hesperian Orchards, Inc., supra. These findings support
the trial court's conclusion that:
There is no Architectural Control Committee in existence, the plaintiffs
or predecessors have been in violation of III.B. of the covenants by not
getting approval of the . . . Committee, and Section III.B. has been
violated in the division over several years. The fact that the defendants
did not try to submit their plans to a nonexistent . . . Committee
provides no legal cause of action to the plaintiffs. Third, White and the
Dixons contend that the Wilhelms
have violated section III D because the pool enclosure is closer than 15
feet to the rear line of the Wilhelms' lot which they allege is an interior
lot. Section Ill D states in part:
No dwelling shall be located on any interior lot nearer than fifteen feet
to the rear lot line. [6, 7] This language is ambiguous. "'A written
instrument is ambiguous when its terms are uncertain or capable of
being understood as having more than one meaning.'" Rydman v.
Martinolich Shipbuilding Corp., 13 Wn. App. 150, 153, 534 P.2d 62
(1975) (quoting Murray v. Western Pac. Ins. Co., 2 Wn. App. 985, 989,
472 P.2d 611 (1970)). It is unclear whether an "interior lot" includes the
Wilhelms' lot which is only partially surrounded by adjoining lots or
whether it includes only those lots completely encompassed by other
lots in the subdivision. Therefore, the trial court could properly consider
additional testimony in
772 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
determining the intent of the parties.
"Ambiguous intent is to be clarified by reference to the instrument,
together with all surrounding facts and circumstances." Foster v. Nehls,
15 Wn. App. 749, 751, 551 P.2d 768 (1976). "Such 'surrounding
circumstances' as may be considered are only those which tend to
reflect the intent of the drafters; circumstances extant at the time the
covenant is sought to be enforced are irrelevant to the question of
ambiguity." Lenhoff v. Birch Bay Real Estate, Inc., supra at 73. Intent is
a question of fact to be discovered by reference to the instrument in its
entirety and the manifest meaning of the language used by the parties.
Fairwood Greens Homeowners Ass'n v. Young, 26 Wn. App. 758, 761,
614 P.2d 219 (1980); Foster v. Nehls, supra; Bersos v. Cape George
Colony Club, supra. Here, Robert Yelland, one of the original
developers of the subdivision who was involved in preparing the
Malabar Hill covenants testified that he did not know exactly what the
word "interior lot" meant as used in the covenants. "[R]estrictions on
the free use of land will not be implied unless they necessarily follow
from clear language of written restrictions." Bersos v. Cape George
Colony Club, supra at 666; see Weld v. Bjork, 75 Wn.2d 410, 451 P.2d
675 (1969).
The trial court concluded: It has not been clearly established that the
defendant's lot number 19 is an interior lot, thus bringing into play
III.D(2). It appears to be an exterior lot or perhaps
it is ambiguous, and doubts about restrictions should be resolved in
favor of the free use of land.
We agree:
A restrictive covenant is to be strictly construed.
Miller v. American Unitarian Ass'n, 100 Wash. 555, 171 Pac. 520;
Granger v. Boulls, 21 Wn. (2d) 597, 152 P. (2d) 325, 155 A. L. R. 523.
Public policy favors the free use of one's own land. Imposed restrictions
will not be aided or extended by judicial construction, and doubts will be
resolved in favor of the unrestricted use of property.
Gwinn v. Cleaver, 56 Wn.2d 612, 615, 354 P.2d 913 (1960); see
Fairwood Greens Homeowners Ass'n; Sandy Point Imp.
May 1983 WHITE v. WILHELM 773
34 Wn. App. 763, 665 P.2d 407
Co. v. Huber, supra; Burton v. Douglas Cy., 65 Wn.2d 619, 399 P.2d
68 (1965). Moreover, a defendant cannot be held to strict compliance
with an uncertain prohibition. Holmes Harbor Water Co. v. Page, 8 Wn.
App. 600, 604, 508 P.2d 628 (1973). The trial court did not err in
refusing to subject the Wilhelms' lot to the restriction regarding
"interior" lots.
The denial of injunctive relief and/or damages was proper since the
Malabar Hill covenants have not been violated or, if violated, have
been abandoned or waived.
It is a well settled rule that one who seeks relief of either a temporary or
permanent injunction must establish (1) that he has a clear legal or
equitable right, (2) that he has a well grounded fear of immediate
invasion of that right by the one against whom the injunction
is sought, and (3) that the acts complained of are either resulting in or
will result in actual and substantial injury to him. Port of Seattle v.
International Longshoremen's & Warehousemen's Union, 52 Wn.2d
317, 324 P.2d 1099 (1958); . . .
Hendricks v. Lake, 12 Wn. App. 15, 19, 528 P.2d 491 (1974); see Tyler
Pipe Indus., Inc. v. Department of Rev., 96 Wn.2d 785, 792, 638 P.2d
1213 (1982); RCW 7.40.020. The plaintiffs have not established a
clear equitable or legal basis which would warrant a mandatory
injunction or allow for damages.
The third issue is whether the Wilhelms should be granted attorney's
fees for damages incurred as a result of their defense of this action.
The Wilhelms have cross-appealed alleging that the trial court erred in
denying them attorney's fees and costs. They contend that attorney's
fees are damages recoverable by a party who successfully resists a
wrongful injunction.
[8] Attorney's fees will not be awarded in the absence of a contract,
statute or recognized ground of equity. Seattle Sch. Dist. 1 v. State, 90
Wn.2d 476, 540, 585 P.2d 71 (1978); Crane Towing, Inc. v. Gorton, 89
Wn.2d 161, 176, 570 P.2d 428, 97 A.L.R.3d 482 (1977). However, "[a]s
a general rule, attorney's fees are damages recoverable by the
774 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
party who successfully resists a wrongful injunction." Parsons Supply,
Inc. v. Smith, 22 Wn. App. 520, 524, 591 P.2d 821 (1979); see Berne v.
Maxham, 82 Wash. 235, 144 P. 23 (1914).
If injunctive relief is the sole purpose of the suit, and a temporary
injunction has issued upon notice and hearing pending trial on the
merits, counsel fees are recoverable as damages resulting from the
temporary injunction if the injunction be dissolved at trial. But, where
injunctive relief is not the sole purpose of the suit and only incidental or
ancillary thereto, counsel fees as damages are recoverable only for
services reasonably performed in attempting to quash the temporary
injunction and not for professional services rendered in the trial on the
merits.
Cecil v. Dominy, 69 Wn.2d 289, 293-94, 418 P.2d 233 (1966).
The purpose of this rule is to deter plaintiffs from seeking an
unnecessary preliminary injunction or restraining order prior to trial
and, consequently, permits recovery of only those fees which a
defendant incurs in dissolving such a wrongfully issued injunction or
order. Ritchie v. Markley, 23 Wn. App. 569, 575, 597 P.2d 449 (1979).
The point at which the wrongfully issued court order is dissolved is the
point at which attorney's fees cease to be recoverable-whether the
court order be a preliminary injunction dissolved by trial on the merits,
see Talbot v. Gray, 11 Wn. App. 807, 812, 525 P.2d 801 (1974); Kelly
v. Schorzman, 3 Wn. App. 908, 914, 478 P.2d 769 (1970), or a
temporary restraining order dissolved by a defendant's motion and
hearing, see Berne v. Maxham, 82 Wash. 235, 144 P. 23 (1914), or a
temporary restraining order dissolved by stipulation of the parties . . .
Ritchie v. Markley, supra at 575.
Here, the Wilhelms were served with the temporary restraining order on
September 25, 1980. A show cause hearing was held on September
30, 1980, at which time the Wilhelms discovered such order was void
because of the failure Of White and the Dixons to post the requisite
$3,500 bond. At that hearing the Wilhelms agreed to cease
May 1983 STATE v. NICHOLAS 775
34 Wn. App. 775, 663 P.2d 1356
construction until the matter was settled. Therefore, the Wilhelms are
entitled to attorney's fees incurred in pretrial efforts to dissolve the
injunction, Parsons Supply, Inc. v. Smith, supra at 525; Cecil v. Dominy,
supra; but such award is limited to those occurring prior to September
30, 1980. Ritchie v. Markley, supra.
The judgment of the trial court is affirmed save for that portion thereof
which denied the Wilhelms' counterclaim for attorney's fees. The cause
is remanded for a determination of reasonable attorney's fees incurred
in pretrial attempts to dissolve the temporary restraining order.
SWANSON and WILLIAMS, JJ., concur.
Reconsideration denied September 2, 1983.
Review denied by Supreme Court November 18, 1983.
[No. 9724-5-I. Division One. May 25, 1983.]
DEANNA WHITE, ET AL, Appellants, v. GLEN
WILHELM, ET AL, Respondents.
[1] Appeal and Error - Findings of Fact - Review -
Harmless Error. Any error in a finding of fact is harmless if the finding
was not material to the trial court's decision.
[2] Appeal and Error - Review - Conclusions Denominated as Findings
- Effect. Conclusions of law incorrectly labeled as findings of fact are
subject to review as conclusions of law.
[3] Covenants - Single Dwelling - House Addition. A structure attached
to and made a part of an existing house does not violate a covenant
prohibiting the construction of any building other than a single-family
dwelling.
[4] Covenants - Enforcement - Estoppel - Previous Violations. A
restrictive covenant applicable to an entire tract of land is not
enforceable if it has been habitually and substantially violated or if the
party seeking its enforcement has violated it.
[5] Appeal and Error - Findings of Fact - Review - In General. Findings
of fact which are supported by substantial evidence
764 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
will not be disturbed on appeal.
[6] Covenants - Construction - Ambiguity - What Constitutes - Effect.
Extrinsic evidence is admissible to determine the intent of the drafters
of an ambiguous restrictive covenant, i.e., one capable of being
understood as having at least two meanings.
[7] Covenants - Construction - Scope of Restriction. Restrictive
covenants are strictly construed in favor of the free use of property and
will not be extended by implication to encompass any use not clearly
expressed.
[8] Injunction - Costs - Attorney Fees - Wrongful Injunction - Scope. A
party may recover attorney fees incurred in dissolving wrongful
injunctive relief. Fees incurred for other attorney services are not
recoverable absent a contract, statute, or applicable basis in equity.
Nature of Action: Action to prevent construction of a
swimming pool enclosure.
Superior Court: The Superior Court for King County,
No. 80-2-14440-5, F. A. Walterskirchen, J. Pro Tem., entered a
judgment in favor of the defendants on December 8, 1980.
Court of Appeals: Holding that restrictive covenants applicable to the
defendants' land either had been abandoned or were not violated and
that the defendants were entitled to attorney fees incurred in pretrial
proceedings to dissolve a temporary restraining order, the court affirms
the judgment and remands for an attorney fee award.
Francis, Lopez & Ackerman and Peter D. Francis, for
appellants.
Bogle & Gates and Helen Harvey, for respondents.
CALLOW
CALLOW, J.-Deanna White and the marital community
of Robert and Marlyce Dixon, appeal a judgment denying them
injunctive relief and/or damages for the alleged violation of certain
residential restrictive covenants by the marital community of Glen and
Carol Wilhelm. The Wilhelms cross-appeal the judgment of the trial
court denying them attorney's fees for damages in defense of this
action. Three
May 1983 WHITE v. WILHELM 765
34 Wn. App. 763, 665 P.2d 407
issues are presented:
1. Whether substantial evidence supports the trial court's finding that
the purpose of the restrictive covenants was to obtain FHA financing;
2. Whether the construction of a swimming pool enclosure by the
Wilhelms is in violation of the Malabar Hill covenants, thereby requiring
a permanent injunction of the construction;
3. Whether the Wilhelms should be granted attorney's fees for
damages incurred as a result of their defense of this action.
The parties to the instant action, Deanna White, Robert B. Dixon,
Marlyce Dixon, Glen Wilhelm, and Carol Wilhelm all reside adjacent to
each other in a subdivision in King County known as Malabar Hill
Division 1. In 1962, Don Jacobs and Robert Yelland, the developers of
the subdivision, filed an instrument containing residential area
covenants (Malabar Hill covenants) when subdividing the property for
residential construction. There is no dispute that the parties are subject
to these covenants.
The Malabar Hill covenants generally restrict land use, building type,
architectural style, cost, quality, size, location, and access to homes
built within the subdivision. They further provide that building plans,
specifications, architectural style, and other specified items must be
approved by the Architectural Control Committee (Committee) prior to
construction. The Committee was originally comprised of Don Jacobs
and Robert Yelland, the developers, and Allen Hill, a consulting
engineer, but has not functioned for the past several years.
This dispute arose in August of 1980 when the Wilhelms began
construction of an enclosure for their swimming pool so that it could be
used year round. The Wilhelms had installed and completed the pool in
February of 1980 in response to a doctor's recommendation that Carol
Wilhelm swim on a regular basis as treatment for her rheumatoid
arthritis. The pool is located immediately adjacent to the Wilhelms'
house, and there is no contention that the
766 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
swimming pool, by itself, is in violation of the restrictive covenants.
However, when construction of the pool enclosure continued over the
objection of White and the Dixons, they filed this lawsuit seeking an
injunction and/or damages. On September 25, 1980, the Wilhelms were
served with a temporary restraining order and order to show cause
enjoining them from further construction of the pool enclosure. They
immediately ceased construction of the pool enclosure. At the time of
trial, the Wilhelms had spent approximately $14,000 for the cost of the
enclosure and expected to spend another $8,500-$9,000 to complete
the addition.
Following trial, the trial court entered judgment denying White's and the
Dixons' request for injunctive relief, damages, and attorney's fees and
dismissed the action. The trial court further denied the Wilhelms'
counterclaim for attorney's fees as damages for defending the action.
The first issue is whether substantial evidence supports the finding that
the purpose of the restrictive covenants was to obtain financing.
Initially, White and the Dixons challenge the trial court's finding of fact
that:
The restrictive covenants on Malabar Hill Division No.
1 (Exhibit 1) were drawn up in the early 1960's for the purpose of
qualifying homes within the development for FHA financing.
The finding is supported by substantial evidence and will not be
disturbed on appeal. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d
190, 199, 570 P.2d 1035 (1977); Thorndike v. Hesperian Orchards,
Inc., 54 Wn.2d 570, 343 P.2d 183 (1959).
[1] In any event, the finding was not material to the decision of the trial
court and its entry not grounds for reversal. See State v. Craig, 82
Wn.2d 777, 784, 514 P.2d 151 (1973); W.L. Reid Co. v. M-B
Contracting Co., 46 Wn.2d 784, 791, 285 P.2d 121 (1955); James S.
Black & Co. v. P & R Co., 12 Wn. App. 533, 537, 530 P.2d 722 (1975);
Stuart v. Consolidated Foods Corp., 6 Wn. App. 841, 845,
May 1983 WHITE v. WILHELM 767
34 Wn. App. 763, 665 P.2d 407
496 P.2d 527 (1972).
The second issue is whether the construction of a swimming pool
enclosure by the Wilhelms is in violation of the Malabar Hill covenants,
thereby requiring a permanent injunction of such construction.
Burton v. Douglas Cy., 65 Wn.2d 619, 621-22, 399 P.2d 68 (1965)
stated the recognized principles for construing restrictive covenants:
(1) The primary objective is to determine the intent of the parties to the
agreement, and, in determining intent, clear and unambiguous
language will be given its manifest meaning. (2) Restrictions, being in
derogation of the common-law right to use land for all lawful purposes,
will not be extended by implication to include any use not clearly
expressed. Doubts must be resolved in favor of the free use of land.
(3) The instrument must be considered in its entirety, and surrounding
circumstances are to be taken into consideration when the meaning is
doubtful.
(Citations omitted.)
White and the Dixons contend by construction of their swimming pool
enclosure that the Wilhelms are in direct violation of three specific
provisions of the Malabar Hill covenants, to wit, sections III A, III B, and
III D. We turn to a discussion Of these covenants.
First, White and the Dixons contend that the Wilhelms have violated
section III A of the Malabar Hill covenants, since the construction of the
swimming pool enclosure creates a second building separate and
distinct from the existing dwelling and is not merely an addition to the
Wilhelms' home.
Section III A states:
No lot shall be used except for residential purposes. No building shall
be erected, altered, placed, or permitted to remain on any lot other
than one detached single-family dwelling not to exceed two and
one-half stories in height and a private garage for not more than four
cars. [2] The trial court found that "the defendants' enclosed
swimming pool is not a separate building but is an addition
768 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
to their single-family dwelling. "The definition of what constitutes a
"single-family dwelling" and whether a structure constructed adjacent to
such a dwelling is a component thereof or whether it is a separate
"building" is to some extent a legal, not a factual issue. Nonetheless,
"[f]indings of fact that are actually conclusions of law will be treated as
such," and are subject to appellate review. Artz v. O'Bannon, 17 Wn.
App. 421, 425, 562 P.2d 674 (1977); see Woodruff v. McClellan, 95
Wn.2d 394, 396, 622 P.2d 1268 (1980).
[3] Generally, a restrictive covenant which limits a lot to "one
single-family dwelling" prohibits an owner from building more than one
residential structure on the lot and from using that structure to house
more than one family. Collins v. Goetsch, 59 Hawaii 481, 583 P.2d 353
(1978); see 20 Am. Jur. 2d Covenants, Conditions, and Restrictions SS
196 (1965). What constitutes a "building" has been traditionally defined
"as a structure or edifice enclosing a space within its walls, and usually
covered with a roof", Annot., What Constitutes a "Building" Within
Restrictive Covenant, 18 A.L.R.3d 850, 852 (1968), but "whether a
particular structure is a building in violation of a restriction depends
upon the wording of the restriction, strictly construed, under the facts of
the particular case." 20 Am. Jur. 2d, supra at SS 194. However, where
an addition to a home is not separate and distinct so that it has the
appearance of a separate building, it will not violate a restrictive
covenant against building more than one structure on a lot. Tate v.
Moran, 264 Pa. Super. 540, 400 A.2d 217, 220 (1979); see Shapiro v.
Levin, 223 Pa. Super. 535, 302 A.2d 417 (1973).
The record supports the conclusion that the enclosure is an addition to
the Wilhelms' home and is not a separate building. The enclosure is to
be sided with cedar drop siding similar to the house, with windows,
doors, and trim similar to the house. It will be the same color as the
house. It is a part of the house and is not separate. The Wilhelms felt
the enclosure was an addition to their home and filed the application
for the building permit based on that belief. The enclosure is entered
through the Wilhelms'
May 1983 WHITE v. WILHELM 769
34 Wn. App. 763, 665 P.2d 407
recreational room, and the enclosure and recreational room are
adjoining rooms like any other room in the house. There is no
separation between the house and pool enclosure. Since the swimming
pool enclosure was built as a part of the house and not as a separate
structure distinct from the Wilhelms' home, its construction is not in
violation of section III A of the Malabar Hill covenants.
Second, White and the Dixons contend that the Wilhelms violated
section III B of the Malabar Hill covenants by not getting approval of the
swimming pool enclosure by the Committee prior to construction.
Section III B states in part:
No building shall be erected, placed, or altered on any lot until the
construction plans and specifications and a plan showing the location
of the structure have been approved by the Architectural Control
Committee as to the quality of workmanship and materials, harmony of
external design with existing structures, and as to location with respect
to topography and finish grade elevation. No fence or wall shall be
erected, placed or altered on any lot nearer to any street than the
minimum building setback line unless similarly approved. [4] There is
no dispute that the Wilhelms did not get
approval of the Committee prior to construction. However, "[i]f a
covenant which applies to an entire tract has been habitually and
substantially violated so as to create an impression that it has been
abandoned, equity will not enforce the covenant." Sandy Point Imp. Co.
v. Huber, 26 Wn. App. 317, 319, 613 P.2d 160 (1980); see Reading v.
Keller, 67 Wn.2d 86, 90, 406 P.2d 634 (1965).
In subdivision cases, where the "common plan" has broken down due
to substantial unchecked prior violations of the restrictions within the
subdivision, the covenants may be deemed to have been terminated by
abandonment. See e.g. Mount Baker Park Club v. Colcock, 45 Wn.2d
467, 275 P.2d 733 (1954); St. Lukes v. Hale's, 13 Wn. App. 483, 534
P.2d 1379 (1975); 5 POWELL ON REAL PROPERTY Para. 683 (1977).
A few violations will not suffice to constitute an abandonment, the plan
must
770 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
have been "habitually and substantially violated." Mount
Baker Park Club v. Colcock, supra.
Washington State Bar Ass'n, Real Property Deskbook SS 15.21
(1979). Applicability of this doctrine, which is based on estoppel, is a
factual determination. Sandy Point Imp. Co. v. Huber, supra; Bersos v.
Cape George Colony Club, 4 Wn. App. 663, 484 P.2d 485 (1971).
Further, "one who has violated a building restriction cannot enforce a
building restriction against others." Reading v. Keller, supra at 89.
[W]here a restriction has been violated by a substantial number of
property owners other than the defendant, and especially where the
plaintiff himself is one of the violators, a mandatory injunction requiring
removal of the offending structure will not be granted.
(Footnotes omitted.) 20 Am. Jur. 2d, supra at SS 331.
As for the misconduct of the plaintiff, we note that there was evidence
at trial tending to show that the requirement of prior approval of
building plans had been habitually and substantially violated over a
long period of time. The nonenforcement of these provisions
diminishes the meritoriousness of the conduct of the plaintiffs in
charging [the defendant] with violation of these restrictions.
Lenhoff v. Birch Bay Real Estate, Inc., 22 Wn. App. 70, 76, 587 P.2d
1087 (1978).
[5] The trial court made the following findings:
3. There has been no Architectural Control Committee in existence for
several years.
4. There have been numerous violations of the restrictive covenants in
Malabar Hill Division No. 1. Three houses have been built on lots 3, 5,
and 17 without approval of the Architectural Control Committee as is
required by III.B. of the covenants.
5. The plaintiffs are not in a position to obtain
equitable relief from the court such as that for which they are asking.
Plaintiffs Dixon's house (lot number 17) was built without approval of
the Architectural Control Committee by their predecessors, the former
owners of the house. Plaintiff White's violations of the covenants
include:
May 1983 WHITE v. WILHELM 771
34 Wn. App. 763, 665 P.2d 407
a. Alteration of the house deck without approval of
the Architectural Control Committee;
b. Addition of a storage shed with a white aluminum
corrugated roof on the south side of plaintiff White's house without
approval of the Architectural Control Committee, and within five feet to
the side line (which is in violation of the King County Code) . . .
These findings are supported by substantial evidence and will not be
disturbed on appeal. Seattle-First Nat'l Bank v. Brommers, supra;
Thorndike v. Hesperian Orchards, Inc., supra. These findings support
the trial court's conclusion that:
There is no Architectural Control Committee in existence, the plaintiffs
or predecessors have been in violation of III.B. of the covenants by not
getting approval of the . . . Committee, and Section III.B. has been
violated in the division over several years. The fact that the defendants
did not try to submit their plans to a nonexistent . . . Committee
provides no legal cause of action to the plaintiffs. Third, White and the
Dixons contend that the Wilhelms
have violated section III D because the pool enclosure is closer than 15
feet to the rear line of the Wilhelms' lot which they allege is an interior
lot. Section Ill D states in part:
No dwelling shall be located on any interior lot nearer than fifteen feet
to the rear lot line. [6, 7] This language is ambiguous. "'A written
instrument is ambiguous when its terms are uncertain or capable of
being understood as having more than one meaning.'" Rydman v.
Martinolich Shipbuilding Corp., 13 Wn. App. 150, 153, 534 P.2d 62
(1975) (quoting Murray v. Western Pac. Ins. Co., 2 Wn. App. 985, 989,
472 P.2d 611 (1970)). It is unclear whether an "interior lot" includes the
Wilhelms' lot which is only partially surrounded by adjoining lots or
whether it includes only those lots completely encompassed by other
lots in the subdivision. Therefore, the trial court could properly consider
additional testimony in
772 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
determining the intent of the parties.
"Ambiguous intent is to be clarified by reference to the instrument,
together with all surrounding facts and circumstances." Foster v. Nehls,
15 Wn. App. 749, 751, 551 P.2d 768 (1976). "Such 'surrounding
circumstances' as may be considered are only those which tend to
reflect the intent of the drafters; circumstances extant at the time the
covenant is sought to be enforced are irrelevant to the question of
ambiguity." Lenhoff v. Birch Bay Real Estate, Inc., supra at 73. Intent is
a question of fact to be discovered by reference to the instrument in its
entirety and the manifest meaning of the language used by the parties.
Fairwood Greens Homeowners Ass'n v. Young, 26 Wn. App. 758, 761,
614 P.2d 219 (1980); Foster v. Nehls, supra; Bersos v. Cape George
Colony Club, supra. Here, Robert Yelland, one of the original
developers of the subdivision who was involved in preparing the
Malabar Hill covenants testified that he did not know exactly what the
word "interior lot" meant as used in the covenants. "[R]estrictions on
the free use of land will not be implied unless they necessarily follow
from clear language of written restrictions." Bersos v. Cape George
Colony Club, supra at 666; see Weld v. Bjork, 75 Wn.2d 410, 451 P.2d
675 (1969).
The trial court concluded: It has not been clearly established that the
defendant's lot number 19 is an interior lot, thus bringing into play
III.D(2). It appears to be an exterior lot or perhaps
it is ambiguous, and doubts about restrictions should be resolved in
favor of the free use of land.
We agree:
A restrictive covenant is to be strictly construed.
Miller v. American Unitarian Ass'n, 100 Wash. 555, 171 Pac. 520;
Granger v. Boulls, 21 Wn. (2d) 597, 152 P. (2d) 325, 155 A. L. R. 523.
Public policy favors the free use of one's own land. Imposed restrictions
will not be aided or extended by judicial construction, and doubts will be
resolved in favor of the unrestricted use of property.
Gwinn v. Cleaver, 56 Wn.2d 612, 615, 354 P.2d 913 (1960); see
Fairwood Greens Homeowners Ass'n; Sandy Point Imp.
May 1983 WHITE v. WILHELM 773
34 Wn. App. 763, 665 P.2d 407
Co. v. Huber, supra; Burton v. Douglas Cy., 65 Wn.2d 619, 399 P.2d
68 (1965). Moreover, a defendant cannot be held to strict compliance
with an uncertain prohibition. Holmes Harbor Water Co. v. Page, 8 Wn.
App. 600, 604, 508 P.2d 628 (1973). The trial court did not err in
refusing to subject the Wilhelms' lot to the restriction regarding
"interior" lots.
The denial of injunctive relief and/or damages was proper since the
Malabar Hill covenants have not been violated or, if violated, have
been abandoned or waived.
It is a well settled rule that one who seeks relief of either a temporary or
permanent injunction must establish (1) that he has a clear legal or
equitable right, (2) that he has a well grounded fear of immediate
invasion of that right by the one against whom the injunction
is sought, and (3) that the acts complained of are either resulting in or
will result in actual and substantial injury to him. Port of Seattle v.
International Longshoremen's & Warehousemen's Union, 52 Wn.2d
317, 324 P.2d 1099 (1958); . . .
Hendricks v. Lake, 12 Wn. App. 15, 19, 528 P.2d 491 (1974); see Tyler
Pipe Indus., Inc. v. Department of Rev., 96 Wn.2d 785, 792, 638 P.2d
1213 (1982); RCW 7.40.020. The plaintiffs have not established a
clear equitable or legal basis which would warrant a mandatory
injunction or allow for damages.
The third issue is whether the Wilhelms should be granted attorney's
fees for damages incurred as a result of their defense of this action.
The Wilhelms have cross-appealed alleging that the trial court erred in
denying them attorney's fees and costs. They contend that attorney's
fees are damages recoverable by a party who successfully resists a
wrongful injunction.
[8] Attorney's fees will not be awarded in the absence of a contract,
statute or recognized ground of equity. Seattle Sch. Dist. 1 v. State, 90
Wn.2d 476, 540, 585 P.2d 71 (1978); Crane Towing, Inc. v. Gorton, 89
Wn.2d 161, 176, 570 P.2d 428, 97 A.L.R.3d 482 (1977). However, "[a]s
a general rule, attorney's fees are damages recoverable by the
774 WHITE v. WILHELM May 1983
34 Wn. App. 763, 665 P.2d 407
party who successfully resists a wrongful injunction." Parsons Supply,
Inc. v. Smith, 22 Wn. App. 520, 524, 591 P.2d 821 (1979); see Berne v.
Maxham, 82 Wash. 235, 144 P. 23 (1914).
If injunctive relief is the sole purpose of the suit, and a temporary
injunction has issued upon notice and hearing pending trial on the
merits, counsel fees are recoverable as damages resulting from the
temporary injunction if the injunction be dissolved at trial. But, where
injunctive relief is not the sole purpose of the suit and only incidental or
ancillary thereto, counsel fees as damages are recoverable only for
services reasonably performed in attempting to quash the temporary
injunction and not for professional services rendered in the trial on the
merits.
Cecil v. Dominy, 69 Wn.2d 289, 293-94, 418 P.2d 233 (1966).
The purpose of this rule is to deter plaintiffs from seeking an
unnecessary preliminary injunction or restraining order prior to trial
and, consequently, permits recovery of only those fees which a
defendant incurs in dissolving such a wrongfully issued injunction or
order. Ritchie v. Markley, 23 Wn. App. 569, 575, 597 P.2d 449 (1979).
The point at which the wrongfully issued court order is dissolved is the
point at which attorney's fees cease to be recoverable-whether the
court order be a preliminary injunction dissolved by trial on the merits,
see Talbot v. Gray, 11 Wn. App. 807, 812, 525 P.2d 801 (1974); Kelly
v. Schorzman, 3 Wn. App. 908, 914, 478 P.2d 769 (1970), or a
temporary restraining order dissolved by a defendant's motion and
hearing, see Berne v. Maxham, 82 Wash. 235, 144 P. 23 (1914), or a
temporary restraining order dissolved by stipulation of the parties . . .
Ritchie v. Markley, supra at 575.
Here, the Wilhelms were served with the temporary restraining order on
September 25, 1980. A show cause hearing was held on September
30, 1980, at which time the Wilhelms discovered such order was void
because of the failure Of White and the Dixons to post the requisite
$3,500 bond. At that hearing the Wilhelms agreed to cease
May 1983 STATE v. NICHOLAS 775
34 Wn. App. 775, 663 P.2d 1356
construction until the matter was settled. Therefore, the Wilhelms are
entitled to attorney's fees incurred in pretrial efforts to dissolve the
injunction, Parsons Supply, Inc. v. Smith, supra at 525; Cecil v. Dominy,
supra; but such award is limited to those occurring prior to September
30, 1980. Ritchie v. Markley, supra.
The judgment of the trial court is affirmed save for that portion thereof
which denied the Wilhelms' counterclaim for attorney's fees. The cause
is remanded for a determination of reasonable attorney's fees incurred
in pretrial attempts to dissolve the temporary restraining order.
SWANSON and WILLIAMS, JJ., concur.
Reconsideration denied September 2, 1983.
Review denied by Supreme Court November 18, 1983.
