Emerald Hills Homes Owners' Association, App v. Kurt Nimmergut, Et Ux, Resp
75504-8
| Wash. Ct. App. | Nov 13, 2017Background
- Emerald Hills lots are subject to CCRs adopted by the homeowners association; Article X, §2 (the "Height Covenant") sets maximum heights for specified lots measured from "the top of the concrete street curb at the location noted for each Lot."
- Lot 19–23 (including the Nimmerguts' Lot 23) is listed as "27 feet maximum height as facing west on 12th Avenue West," but unlike many other lots the provision does not specify the precise curb point from which to measure.
- The Association initially approved the Nimmerguts’ house plans in 2012 based on an agreed measurement method (average between highest point and center of frontage); plans later expired.
- The Nimmerguts’ counsel later asserted the covenant permits measuring from any point on the lot’s frontage (which would allow up to 2.95 feet more height); the Association rejected that interpretation.
- The Nimmerguts sued for declaratory judgment; the trial court granted summary judgment for the Nimmerguts, holding the plain language permitted measuring from any point the lot faces 12th Ave. West.
- The Court of Appeals reversed, holding the Height Covenant is ambiguous about the point of measurement, so intent-of-drafter facts remain and summary judgment was improper.
Issues
| Issue | Plaintiff's Argument (Nimmergut) | Defendant's Argument (Association) | Held |
|---|---|---|---|
| Whether a justiciable controversy exists to seek declaratory relief | Yes — Association has refused requested interpretation and will reject plans based on its view, so dispute is concrete | No — declaratory relief premature absent actual plans that would violate covenant (relying on Bloome) | Justiciable: Court confirms UDJA standing; controversy is mature and appropriate for declaratory relief |
| Proper interpretation of Height Covenant measurement point for Lot 23 | Language allows measuring from any point where Lot 23 faces 12th Ave. West (supports up to +2.95 ft) | Measurement must be from the average curb height (or another specified point) as Association has long applied | Covenant language is ambiguous as to the specific curb point; drafters' intent is a factual question; summary judgment improper |
| Whether trial court erred by excluding Association's extrinsic evidence of drafters' intent | Nimmergut argued plain language controlled so extrinsic evidence unnecessary | Association relied on extrinsic evidence (drafting history, past application) to show intended measurement point | Court of Appeals finds extrinsic evidence may be admissible given ambiguity; trial court erred in granting summary judgment without resolving intent facts |
| Whether summary judgment was appropriate | Nimmergut: plain reading supports their method; no genuine issue of material fact | Association: genuine factual dispute over drafters' intent and application; summary judgment premature | Reversed: genuine issue of material fact (intent) precludes summary judgment; remand for further proceedings |
Key Cases Cited
- Benton County v. Zink, 191 Wn. App. 269 (describing UDJA standing elements for declaratory relief)
- To-Ro Trade Shows v. Collins, 144 Wn.2d 403 (UDJA justiciability standards)
- Bloome v. Haverly, 154 Wn. App. 129 (declining declaratory relief where covenant lacked measurable standards and no concrete plan existed)
- Hollis v. Garwall, Inc., 137 Wn.2d 683 (when covenant ambiguous, court may consider extrinsic evidence of drafter intent)
- Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337 (same: using surrounding circumstances and extrinsic evidence to interpret ambiguous covenant)