Opinion
No. 36544-8-II.
March 10, 2009.
Appeal from a judgment of the Superior Court for Ska-mania County, No. 03-2-00082-7, E. Thompson Reynolds, J., entered May 31, 2007.
Affirmed in part and reversed in part by unpublished opinion per Houghton, J., concurred in by Bridgewater and Armstrong, JJ.
Dennis and Elizabeth Lane appeal a trial court decision allowing Lawrence and Shelane L'Hommedieu to construct a septic tank, arguing trial court error. We affirm the decision allowing the L'Hommedieus to build the septic tank, but we reverse the attorney fee award.
FACTS
Lawrence L'Hommedieu's parents gave him and his wife a plot of subdivided land near the banks of the Washougal River in Skamania County. Three years later, the L'Hommedieus acquired the adjoining lot. The deeds to both lots contained a restrictive covenant that read in part:
[T]he . . . property or any buildings or structures erected thereon, shall not be used for any purpose which will cause polution [sic] to the waters of the Washougal River or any tributary thereof, and all sewage disposal shall be by means of a septic tank of standard design and no septic tank or drainage shall discharge within fifty feet of the banks of the Washougal River or any tributary thereof.
I Clerk's Papers (CP) at 52.
The restrictive covenant was, by its own wording, to remain effective from June 1, 1944, until June 1, 1969. It would then renew automatically every 10 years unless amended "in whole or in part" by a majority of the subdivision property owners. The covenant could be rescinded by unanimous consent. CP at 52.
In May 1997, the L'Hommedieus obtained a Skamania County construction permit and planned to build a new house on the property. The Southwest Washington Health District approved the septic system installation. The Skamania County Planning Department (Department) ordinarily requires that homes be built at least 25 feet from a stream leading to the Washougal River, but it granted the L'Hommedieus a variance allowing them to build 18 feet from the stream having found that "this variance should not be detrimental to the public welfare or injurious to the property . . . in the area." CP at 66.
Skamania County Health Department's public health sanitarian, who is also a civil engineer familiar with the particular septic system the L'Hommedieus intended to install, described the system as doing "on a small scale what is accomplished by a municipal sewage treatment facility." CP at 124. The septic system first treats effluent aerobically and then disinfects it with ultraviolet light. The L'Hommedieus began constructing their new home in June 2003.
The Lanes, their neighbors, had unsuccessfully appealed the Department's decision, to grant the L'Hommedieus a variance, to Skamania County's Board of Adjustment (Board). The Lanes then sought an injunction requiring the L'Hommedieus to stop construction, arguing that the covenants specified that "no septic tank or drainage shall discharge within fifty feet of the banks of the Washougal River or any tributary thereof." CP 136. After they posted a bond, the trial court granted a preliminary injunction.
The L'Hommedieus moved for summary judgment. They argued (1) invalidity of the deed restriction, (2) lack of need to strictly comply with the restriction, and (3) the untimeliness of the Lane's action. The trial court granted the L'Hommedieus' motion. On appeal, we reversed summary judgment, holding that the trial court incorrectly concluded that "'a material change in the character of the neighborhood'" could be properly decided on summary judgment. Lane v. Skamania County, noted at 128 Wn. App. 1063, 2005 WL 1847180, at *7 (quoting St. Luke's Evangelical Lutheran Church v. Hales, 13 Wn. App. 483, 485, 534 P.2d 1379 (1975)) (internal quotation marks omitted). We remanded with direction that the "fact finder should decide whether the septic systems' technological sophistication renders the covenant unnecessary." Lane, 2005 WL 1847180, at *8.
On remand the trial court, acting as fact finder, found that enforcement of the 50-foot setback would be of no benefit, and stated that "[t]he deed restriction has been outmoded and lost its usefulness as to modern septic systems." CP at 680. The trial court also ruled that balancing the equities weighed against the enforcement of the deed restriction. Finally, the trial court found the L'Hommedieus' wrongful enjoinment entitled them to attorney fees. The Lanes appeal.
ANALYSIS Action on Remand
The Lanes argue that the trial court erred when it decided that a restrictive covenant that runs with both their land and the parcel owned by the L'Hommedieus no longer required the 50-foot setback due to technological advances in septic tank construction. We disagree.
On remand, we told the trial court that the "fact finder should decide whether the septic systems' technological sophistication renders the covenant unnecessary." Lane, 2005 WL 1847180, at *8. We now review whether the trial court, acting as fact finder, properly did so.
After taking testimony and reviewing the evidence, the trial court entered findings of fact and conclusions of law. We limit our review to whether substantial evidence supports the findings and whether they, in turn, support its conclusions. Proctor v. Huntington, 146 Wn. App. 836, 844-45, 192 P.3d 958 (2008). Substantial evidence is evidence sufficient to convince an unprejudiced, rational person that a finding is true. Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 751-52, 49 P.3d 867 (2002). We defer to the fact finder on issues of conflicting evidence, credibility of witnesses, and persuasiveness of the evidence. City of University Place v. McGuire, 144 Wn.2d 640, 652-53, 30 P.3d 453 (2001).
Pertinent to our review, the trial court found that (1) conventional gravity septic tank systems rely primarily on the soil to treat effluent, (2) the L'Hommedieus' septic system design meets the state's highest effluent treatment standards, (3) the county agency responsible for limiting pollution approved the design, (4) the L'Hommedieus' system, located within 50 feet of the stream, was less likely to pollute the river than a conventional gravity system located 50 feet from the stream, (5) neither the public nor the Lanes would substantially benefit from enforcing the 50-foot setback and conventional septic system, and (6) the overwhelming evidence demonstrated that the L'Hommedieus' septic design posed minimal risk of polluting the Washougal River.
The process of aerobically treating the sewage and exposing it to ultraviolet light inactivates the bacteria that would otherwise cause it to pollute the river.
The trial court heard expert testimony presented by the Lanes and the L'Hommedieus. The L'Hommedieus' expert testified that the septic design thoroughly cleaned the sewage. By the time it got to the river, he said, the effluent would be harmless and the possibility of system failure minimal. The L'Hommedieus also called a member of the Board that granted the variance, who agreed with the L'Hommedieus' other expert. He also testified that the Board granted the variance because, although the septic system would be fewer than 50 feet from the river, its design made it very unlikely that effluent would pollute the river.
The Lanes also called an expert. He opined that the L'Hommedieus' new system, like any form of septic system, could possibly fail.
Faced with this slightly conflicting testimony, the trial court chose to believe that presented by the L'Hommedieus. This evidence substantially supports the trial court's findings. Those findings, in turn, support the trial court's conclusion that "as applied to . . . L'Hommedieu's septic systems, the deed restriction does not apply." CP at 682.
Balancing the Equities
Our remand did not require that the trial court engage in an analysis that balanced the equities. We address this issue in the interests of justice; it does not change the outcome here.
Citing Hollis v. Garwall, Inc., 137 Wn.2d 683, 974 P.2d 836 (1999), the Lanes contend that the trial court erred in balancing the equities. We agree.
Our Supreme Court has ruled that "the benefit of the doctrine of balancing the equities, or relative hardships, is reserved for the innocent defendant who proceeds without knowledge or warning that his activity encroaches on another's property rights." Hollis, 137 Wn. at 699-700.
At trial, the L'Hommedieus acknowledged that they proceeded to construct the house and its septic system fully aware of the covenant's existence. Because they admit that they began building the septic tank with knowledge of the covenant and its obligations, they cannot receive the benefit of balancing the equities.
Attorney Fees
The Lanes contend that the trial court erred in awarding the L'Hommedieus $12,513 in attorney fees. The Lanes claim that, although the trial court based its award on them having improperly obtained a preliminary injunction, it also found that they did not seek the injunction in bad faith.
CR 65(c) allows damages "for the payment of such costs and damages as may be incurred . . . by any party who is found to have been wrongfully enjoined or restrained." Generally, a wrongful temporary restraining order is one dissolved at the conclusion of a full hearing. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 143, 937 P.2d 154 (1997). An exception to this rule prohibits the trial court from awarding fees when the injunction is ancillary to the relief sought at trial. Cecil v. Dominy, 69 Wn.2d 289, 292-94, 418 P.2d 233 (1966).
Although Washington law on restrictive covenants does not explicitly require that an injunction be obtained to enforce one's rights in a covenant, an injunction implicitly acts to preserve these rights. The law requires that a plaintiff seeking enforcement of a covenant exercise the highest degree of diligence. Ronberg v. Smith, 132 Wash. 345, 351, 232 P. 283 (1925) (citing Roper v. Williams, 37 Eng. Rep. 999 (1822)). A more ancient rule, still good law in Washington, requires that a party seeking enforcement of a covenant must seek an injunction "'in the first instance.'" Ronberg, 132 Wn. at 351 (quoting Roper, 37 Eng. Rep. 999). The Lanes would have acted counter to this rule had they refrained from seeking an injunction and allowed the L'Hommedieus to expend funds. Thus, the trial court could not award attorney fees where it found that the Lanes did not act in bad faith.
Affirmed in part and reversed in part.
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.
BRIDGEWATER, J. and ARMSTRONG, J., concur.