80 Wash. App. 553 | Wash. Ct. App. | 1996
In 1992, William and Carolyn Riss bought Lot 6 in Mercia Heights with plans to raze the existing dwelling and build a new one. The Risses submitted their proposed plans for the new dwelling to the homeowners’ association for approval. The association rejected the plans, claiming they were inconsistent with restrictive covenants governing the development. The Risses commenced an action against the homeowners and recovered judgments for damages, attorney fees, and other relief. Selected homeowners appeal. Because (a) the homeowners unreasonably disapproved the Risses’ plans, 0)) the homeowners of this unincorporated association are jointly and severally liable for damages resulting from the disap
The Risses own Lot 6 in Mercia Heights in the City of Clyde Hill. The Mercia Corporation is a nonprofit corporation composed of homeowners in Mercia. The corporation was administratively dissolved on July 1, 1985. The homeowners have since administered the covenants at issue here as an unincorporated association, acting through its elected board.
All lots in Mercia are subject to the covenants. They specify an approval process by which the board of the association reviews designs of proposed construction for compliance with the covenants. The covenants also provide for an appeal process to all homeowners from the decisions of the board.
The covenants specify minimum square footage, setback, and height restrictions for all lots. The covenants do not contain any specific references to maximum limitations on the size, square footage, or bulk of a residence.
After a bench trial on the claims brought by the Risses, the court entered an order and declaratory judgment in favor of the Risses. The court later entered a judgment against the homeowners for damages and attorney fees arising from the Risses’ claims.
I
Design Review
The homeowners first argue that the trial court erroneously concluded that they exceeded their authority under the covenants when they rejected the Risses’ design proposal. We disagree.
The interpretation of the language in restrictive covenants is a question of law.
The homeowners first argue that the specific covenant provisions regarding minimum square footage, maximum height, and minimum setback do not limit their right to refuse any proposed structure or remodel for any reason. Paragraph 6 of the covenants gives the association the right to disapprove the design, finishing, or painting of any construction that is not suitable or desirable for any reason, aesthetic or otherwise. As support for that assertion, they cite Thayer v. Thompson,
Thayer is factually distinguishable. The only covenant addressed by the court in that case was the approval requirement. The approval clause in the instant case must be read in conjunction with the maximum height, setback,
In Bersos v. Cape George Colony Club
The homeowners attempt to distinguish Bersos on the facts, arguing that it was not a design review case at all, but rather, a failure of the covenants to give notice of a restriction on the subdivision. The homeowners argue conclusorily that paragraph 6 of the covenants authorizes them to "disapprove new construction on several specified grounds” without specifying what those grounds are.
In Davis v. Huey,
The homeowners seek to distinguish Davis on the basis that the dispute in that case was between a homeowner and the developer, rather than between homeowners, as is the case in Mercia. Thus, the rule of strict construction applied in Davis against the developer, with regard to the
The South Carolina Court of Appeals addressed the permissible scope of building plan approval in Palmetto Dunes Resort v. Brown.
The homeowners read Palmetto Dunes as validating their exercise of broad discretion in plan approval. But that case is factually distinguishable. The South Carolina court held that the intent of the approval clause, viewed in relation to the entire document, was to vest in the review board the authority to disapprove plans based upon its judgment of their aesthetic suitability.
The trial court in this case concluded on the basis of undisputed testimony that the height of the Risses’ proposed residence was well below the maximum stated in the covenants. In 1990, there was an attempt to amend paragraph 4 to limit the height of new construction on a lot to the height of any existing construction. That attempt failed. According to testimony at trial, the proposal failed because the homeowners were concerned about reducing the value of their property with such a restriction. The 20-foot maximum was the only clear statement of height restriction in the covenants. The Risses’ planned dwelling had a ridge height of ll1/2 feet from the highest point of finished grade on the lot. Under Bersos, the trial court did not err in concluding that the Mercia homeowners could not restrict the Risses’ proposal any further than the covenants clearly stated.
Likewise, the trial court did not err in concluding that it was unreasonable for the homeowners to create a different setback requirement from the one clearly expressed in the covenants. The Risses’ design was well within the covenants’ requirement.
Finally, the homeowners’ objection to the bulk of the Risses’ proposed residence was beyond the scope of their authority. The only restriction on size in the covenants was a minimum square footage requirement for livable space. The Risses planned a home with more than 1,400 square feet in living area. That met the requirements of the covenants.
The homeowners next assert that the decision of their board should be accorded the same sort of deference
The homeowners also argue that the trial court should not have evaluated the reasonableness of their decision through the use of evidence and testimony not presented to them at the time they made their decision. We review admission of evidence under an abuse of discretion standard.
The homeowners make various assertions about the probity of their decision-making process. For example, they assert that the meetings were fair and open and that no misleading information was presented there. Further, they assert that they were under no obligation to prepare studies that might have given them more information to make a comparison of relative bulk, for example. But these arguments are misplaced. The covenants do not permit the homeowners to create new standards for size, setback, or height beyond those already contained in the covenants as written. Because the homeowners acted
II
Joint and Several Liability
The homeowners argue that the trial court erred in holding them jointly and severally liable for damages to the Risses. They claim the trial court could not impose liability without knowing how each homeowner voted. We disagree.
The Supreme Court has stated that "the liability of the members of a voluntary association is joint and several, and . . . each member is individually liable for all of the debts of the association to third parties.”
III
Attorney Fees
The Mercia homeowners challenge the fact but not the amount of the award of attorney fees to the Risses. We hold that the trial court did not err in making the award.
A trial court may award attorney fees only where there is a contractual, statutory, or recognized equitable basis.
While the homeowners assigned error to other factual findings and conclusions of law, they did not argue those other issues. We will not consider assignments of error that the homeowners did not argue.
Agid and Becker, JJ., concur.
Review granted at 129 Wn.2d 1019 (1996).
Parry v. Hewitt, 68 Wn. App. 664, 668, 847 P.2d 483 (1992).
Failor’s Pharmacy v. Department of Social & Health Servs., 125 Wn.2d 488, 493, 886 P.2d 147 (1994).
Parry, 68 Wn. App. at 668 (citing Burton v. Douglas County, 65 Wn.2d 619, 621, 399 P.2d 68 (1965)).
See, e.g., Lynott v. National Union Fire Ins. Co., 123 Wn.2d 678, 690, 871 P.2d 146 (1994); Berg v. Hudesman, 115 Wn.2d 657, 677, 801 P.2d 222 (1990); Guy Stickney, Inc. v. Underwood, 67 Wn.2d 824, 827, 410 P.2d 7 (1966).
36 Wn. App. 794, 677 P.2d 787, review denied, 101 Wn.2d 1016 (1984).
Thayer, 36 Wn. App. at 794-95.
Thayer, 36 Wn. App. at 795.
Thayer, 36 Wn. App. at 796-97.
10 Wn. App. 969, 521 P.2d 1217 (1974).
Bersos, 10 Wn. App. at 970.
Bersos, 10 Wn. App. at 971.
Bersos, 10 Wn. App. at 973.
Bersos, 10 Wn. App. at 973.
Reply Br. of Appellants at 12.
Bersos, 10 Wn. App. at 973.
620 S.W.2d 561 (Tex. 1981).
Davis, 620 S.W.2d at 564.
Davis, 620 S.W.2d at 564.
Davis, 620 S.W.2d at 564.
Davis, 620 S.W.2d at 566.
287 S.C. 1, 336 S.E.2d 15 (Ct. App. 1985).
Palmetto Dunes, 336 S.E.2d at 17.
Palmetto Dunes, 336 S.E.2d at 17.
Palmetto Dunes, 336 S.E.2d at 19.
Palmetto Dunes, 336 S.E.2d at 18.
Palmetto Dunes, 336 S.E.2d at 17.
RCW 34.05.
See RCW 34.05.010(2) (defining "agency”). See also William R. Andersen, The 1988 Washington Administrative Procedure Act — An Introduction, 64 Wash. L. Rev. 781, 784-87 (1989) (describing agencies covered by the APA).
Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 76, 684 P.2d 692 (1984).
Nolan v. McNamee, 82 Wash. 585, 587, 144 P. 904 (1914).
Miotke v. Spokane, 101 Wn.2d 307, 338, 678 P.2d 803 (1984).
See Marassi v. Lau, 71 Wn. App. 912, 915, 915 n.3, 859 P.2d 605 (1993) (quoting RCW 4.84.330).
Marassi, 71 Wn. App. at 915.
Marassi, 71 Wn. App. at 916.
See West Coast Stationary Eng’rs Welfare Fund v. City of Kennewick, 39 Wn. App. 466, 477, 694 P.2d 1101 (1985) (holding that contractual provision that supports award of attorney fees at trial also supports award on appeal under RAP 18.1).
Rhinehart v. Seattle Times, Inc., 59 Wn. App. 332, 336, 798 P.2d 1155 (1990).