Opinion
No. 29576-8-II.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 01-2-00592-9. Judgment or order under review. Date filed: 10/11/2002. Judge signing: Hon. Stephen M Warning.
Counsel for Appellant(s), Ruth A. Patterson (Appearing Pro Se), 16107 NE 77th Circle, Vancouver, WA 98682.
Joseph L. Patterson (Appearing Pro Se), 16107 NE 77th Circle, Vancouver, WA 98682.
Counsel for Respondent(s), Matthew J Andersen, Attorney at Law, PO Box 1549, Longview, WA 98632-7934.
Ruth and Joseph Patterson appeal an injunction that prohibits them from operating a commercial go-cart track on their subdivided lots. We affirm.
The Sassy's Creek Plat is located in an unzoned area of Cowlitz County. It is subject to `Road Maintenance Agreement and Covenants' that we will refer to as `the Covenants.' The Covenants provide in part:
In the event any owner decides to undertake any commercial activity within the plat, i.e. logging, heavy equipment movement, continuously, other than individual residential use, then that owner shall agree to post a road repair bond to cover the cost of repairing any damage that may be caused that would not be considered normal wear and tear and not to cause any economic harm to the other owners.
1 Clerk's Papers (CP) at 27.
In 1998, the Pattersons constructed a go-cart track on Lots 6 and 7. After furnishing it with 6 to 10 go-carts, they opened it to the public from noon until dark on each Friday, Saturday, and Sunday from Memorial Day through Labor Day. They advertised the track's availability, and they established a `ticket and snack booth.'
The Pattersons and various others own Lots 6 and 7 of `Sassy's Creek Plat.' We refer to them collectively as `the Pattersons.'
2 CP at 196.
The respondents sued to enforce the Covenants. Alleging that the go-carts were `loud and disturbing' and running `for long periods of time[,]' they claimed that the road had been damaged by commercial use and that the value of their properties had been reduced. On July 18, 2001, the trial court preliminarily enjoined the Pattersons from operating their track commercially.
John and Frances Schroeder, Michael and Nadine Zimmerlund, Chris and Kyong Steffen, and Bill and Carol Foss own other lots in or near the plat. We refer to them collectively as `the respondents.'
1 CP at 35.
A year or so later, the parties filed cross-motions for summary judgment. The respondents argued that the Covenants unambiguously prohibited `continuous commercial activity in the plat that causes any economic harm to the other owners in the plat.' They supported their motion with an appraiser's declaration that their property had lost value because of the commercial go-cart track. The Pattersons did not produce evidence contravening the appraiser.
1 CP at 105.
In August 2002, the parties argued their motions. During the argument, counsel for the Pattersons `stipulated in open court that there was no factual question before the Court as to whether the Defendants were in violation of the Sassy's Creek Road Maintenance Agreement and Covenants, stating that the case was ripe for adjudication.' On August 30, 2002, the trial court ruled in writing:
3 CP at 370-71.
(a) In operating their go-c]art track, the Defendants are `undertaking commercial activity' within the Sassy's Creek Plat that is continuous and not for `residential individual use.'
(b) The activity . . . is prohibited by the Sassy's Creek Road Maintenance Agreement and Covenants where such activity causes economic harm to other property owners in the Sassy's Creek Plat.
3 CP at 374.
The trial court indicated it would continue the injunction.
On September 5, 2002, the appellants moved for reconsideration based on the declaration of John Stokes. Stokes declared that he was the author of the Covenants and that he had not intended `for there to be any limitations on the use of the property for any commercial use. My sole concern was that the road would not be damaged unduly by intensive heavy equipment use.' Although he did not say that he had manifested his intent to anyone else, he averred that the trial court's ruling abridged the Covenants' `letter or spirit[.]'
3 CP at 382.
3 CP at 383.
The respondents moved to strike Stokes' declaration. Citing Hollis v. Garwell, they argued that `admissible extrinsic evidence does not include . . . [e]vidence of a party's unilateral or subjective intent as to the meaning of a contract word or term'; that Stokes' declaration described his unexpressed subjective intent; and thus that his declaration should be stricken. Alternatively, they offered contradictory declarations from two others who had signed the Covenants, Darlene Homa and Dirk Muyskens, each of whom stated:
137 Wn.2d 683, 695, 974 P.2d 836 (1999).
3 CP at 394 (emphasis in original).
It was my understanding when I signed the agreement that some commercial use would be allowed in the plat, but only if it was conducted in a manner that did not damage the surrounding owners' property values. . . . [I]t was my intent that the agreement would limit commercial uses in the plat so as not to cause any economic harm to the surrounding property owners.
3 CP at 409, 415.
On October 11, 2002, after considering the declarations of Stokes, Homa, and Muyskens, the trial court `permanently enjoined [the Pattersons] from operating a commercial go-[c]art track' on their Sassy's Creek lots. The respondents voluntarily dismissed their unresolved claims, and the Pattersons filed this appeal.
3 CP at 437.
In Hollis v. Garwell, the Washington Supreme Court applied Berg v. Hudesman's `context rule' to real estate covenants. The court noted, however, that evidence of `unilateral or subjective intent' was not cognizable under Berg.
115 Wn.2d 657, 801 P.2d 222 (1990).
In BNC Mortgage v. Tax Pros, Inc., we described Berg's `context rule' as follows:
111 Wn. App. 238, 46 P.3d 812 (2002).
When interpreting a written contract, a Washington court must ascertain the meaning that the persons who used the words intended their words to have. That meaning can vary according to the context in which the words were used. Thus, the court must consider not just the words, but also the context in which the words were used. Context can render ambiguous words that otherwise would not be, or clarify words that otherwise would be.
When considering the context of a written contract, a Washington court adheres to the objective manifestation theory of contracts. . . . A court considers the parties' objective manifestations, but not their unexpressed subjective intentions. . . .
A court can consider a written contract and its context either before trial or at trial. Before trial, a court examines affidavits or other materials offered in support of a motion for summary judgment. At trial, a court listens to witnesses and considers exhibits. If the contract's written words have but one reasonable meaning when read in context, a court may grant summary judgment before trial, or direct a verdict at trial. If the contract's written words have two or more reasonable meanings (i.e., are `ambiguous') when read in context, a court may not grant summary judgment or direct a verdict; instead, it must put the case to a trier of fact.
BNC Mortgage, Inc., 111 Wn. App. at 249-51 (footnotes omitted).
Turning to this case, we first ask whether the declarations submitted by Stokes, Homa, and Muyskens contain admissible evidence of context. As already seen, each of the three declarations describes a subjective intent which, so far as is shown, its author never manifested to anyone else. Applying Hollis, Berg, and BNC, we conclude that none of the three declarations contains admissible evidence of context.
We next ask whether the Covenant quoted above applies. The Covenant provides by its terms that it will apply in the event that an owner of property within the Sassy's Creek plat uses his or her property for continuous commercial activity. The Pattersons were doing that here, so the Covenant applies.
Assuming that the Covenant applies, we next ask whether it plainly and unambiguously prohibits the Pattersons from engaging in continuous commercial activity that causes economic harm to other owners in the plat. The phrase `not to cause economic harm' necessarily reaches back to the verb `agree.' By its terms then, the Covenant requires an owner who undertakes continuous commercial activity within the plat (a) `to post a road repair bond' that meets certain criteria and (b) `not to cause any economic harm to other owners.' We conclude that the Covenant plainly and unambiguously prohibits the Pattersons from engaging in continuous commercial activity that causes economic harm to other owners in the plat.
The last question is whether the Pattersons' go-cart track caused economic harm to other owners in the plat. The respondents' appraiser testified that it did. The Pattersons did not produce anything to contravene his testimony. Given this record, reasonable minds could not differ, and the trial court did not err.
We do not overlook the various points that Ms. Patterson made during oral argument. Except as already discussed, however, they are not supported by the record or without legal significance.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, C.J., concur.