Opinion
No. 50772-9-I.
Filed: June 14, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-2-13954-3. Judgment or order under review. Date filed: 06/27/2002. Judge signing: Hon. Mary Yu.
Counsel for Petitioner(s), Howard Mark Goodfriend, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Counsel for Respondent(s), Thomas A. Heinrich, Attorney at Law, 110 SW Whitaker, Portland, OR 97239.
Kimberly Anne Reppart, Fallon McKinley, 1111 3rd Ave Ste 2100, Seattle, WA 98101-3207.
James Price, who lives uphill from the Beechers, asked the court to enforce a view covenant by ordering removal of or trimming of the trees on the Beechers' lot. The trial court properly interpreted the covenant as requiring removal of the trees to the extent that removing them would clear Price's line of sight to the water, but not if his view would still remain obstructed by trees the covenant does not control. And because the court's unchallenged findings did not preclude the court from balancing the relative hardships, we find no error in the court's equitable division of a portion of the costs between the parties.
James Beecher and his wife purchased property in a north Seattle neighborhood in 1970. James Price's parents purchased property uphill and east of the Beecher lot in 1963. Price became the sole owner of the property upon his parents' death in 1999.
Price sued the Beechers in May 2000. He sought an injunction requiring the Beechers to remove certain trees on their property that had grown up between Price's lot and Puget Sound: a cluster of five tall Douglas Fir trees, and a cluster of 28 cedars, spruces and hemlocks. His suit was based upon restrictive covenants recorded by the original plat owners in 1941. Later owners amended and approved the covenants by a majority vote in 1992, but chose to retain a paragraph that protects the landowners' view of Puget Sound:
No owner of any lot shall plant or maintain or permit to remain on his lot or the street abutting thereon any shrub, tree or radio antenna or aerial which shall in any manner obstruct or impair the view of Puget Sound of any of the owners of other lots in this addition. The undersigned, until the architectural committee has been elected, and thereafter, the architectural committee shall have the right to place additional restrictions on shrubbery and radio antennas and aerials so as to harmonize the general appearance.
Clerk's Papers at 198.
A five-day bench trial took place in spring 2002. The court, upon visiting the site, observed a forested neighborhood, and saw that some of the trees in Price's line of sight to the Sound were on property unaffected by the recorded covenants. The court found that these "background" trees "have grown into plaintiff's view and will continue to grow into plaintiff's view and partially obstruct the view of Puget Sound from the Price property. A completely unobstructed view of the water is not possible from the plaintiff's residence." The court found that the five Douglas Fir trees did not impair Price's view, except for a few drooping limbs. The court ordered these limbs removed, at the Beechers' expense. As to the other cluster of 28 trees, the court found that the tops of some of them did impair Price's view. The court concluded that Price and the Beechers should share equally in the costs of cutting or topping the trees in the 28 tree cluster so as to preserve Price's view, and Price, as the only benefiting party, would bear the entire cost of obtaining any permits necessary to cut or top these trees.
Finding of fact 7.
The trees are located in an area the City of Seattle has designated as an environmentally critical area, and cutting or trimming them may not be possible without considerable expense in obtaining permits.
Price appeals. He contends the court not only misinterpreted the covenant, but also impermissibly balanced the equities instead of making the Beechers bear the entire cost of removing the overgrown trees.
FINDINGS OF FACT
The findings of fact the court entered include the following:
6. No lot in the Northwood Plat has a view of Puget Sound which is completely unobstructed by trees. The intent of the covenant was to preserve views of the Puget Sound within the context of a housing development that does have trees and shrubs as part of its framework.
7. The plaintiff has one of the better views in the Northwood neighborhood. Although the plaintiff has a view of the Puget Sound, there are, within that view, trees located on the Beecher property and on the property of several neighbors. Also within plaintiff's view of Puget Sound are trees located on property farther to the west outside of the Northwood neighborhood and not subject to the restrictive covenants. These "background trees" have grown into plaintiff's view and will continue to grow into plaintiff's view and partially obstruct the view of Puget Sound from the Price property. A completely unobstructed view of the water is not possible from the plaintiff's residence.
8. There are two major groups of trees at issue in this case. On the eastern portion of the Beecher property stand five tall Douglas Fir trees. Over the years the Beechers have removed some of the lower limbs of those trees in order to provide the uphill neighbors, including the Prices, with a better view of Puget Sound.
9. A second group of trees on the western portion of the Beecher property includes a clump of 28 evergreen trees. Over the years the Beechers have topped this group of trees to a height established by a certified arborist.
10. The five Douglas Fir trees located on the Beecher property do not impair or obstruct plaintiff's view of Puget Sound, with the exception of a few of the lower branches which are drooping into that view. There would be no benefit to the plaintiff if those trees were removed.
11. The tops of some of the 28 trees do partially impair or obstruct plaintiff's view of Puget Sound.
12. The plaintiff has failed to meet his burden of proof that he has suffered a diminution in the value of his property or other loss compensable by monetary damages.
Clerk's Papers at 609-611(emphasis added).
The underlined portions of the findings set forth above are those to which Price has assigned error. However, his argument addresses only the findings concerning intent (finding 6) and damages (finding 12). He does not effectively challenge the sufficiency of the evidence supporting the other findings of fact. Instead, he sets forth his own version of the facts, alleging that the Beechers went on for years being uncooperative and unresponsive to his requests for removal of their trees.
An appellant's challenge to findings of fact is insufficient if it merely contains a recitation of the facts in the light most favorable to the appellant, even if it contains citations to the record. Matter of Estate of Lint, 135 Wn.2d 518, 531-32, 957 P.2d 755 (1998). Those findings which Price has not properly challenged are verities on appeal. Estate of Lint, 135 Wn.2d at 533. Price's alternative statement of "facts" is of no assistance to our review, because Price has not shown why his version of the facts should either replace or supplement the facts actually found by the court.
COVENANT INTERPRETATION
Price's first argument is that the court misinterpreted the covenant when it refused to adopt a construction that would require the Beechers to remove every tree in the line of sight from Price's property to Puget Sound. The interpretation of language in a covenant is a question of law. Krein v. Smith, 60 Wn. App. 809, 811, 807 P.2d 906 (1991). Questions of law are reviewed de novo. Ackerman v. Sudden Valley Community Assn., 89 Wn. App. 156, 163, 944 P.2d 1045 (1997).
The primary objective in interpreting restrictive covenants is to determine the intent of the parties to the agreement. Unambiguous language in a covenant will be given its plain and reasonable meaning. Riss v. Angel, 131 Wn.2d 612, 621, 934 P.2d 669 (1997).
The covenant states that the Beechers may not permit to remain on their lot any tree "which shall in any manner obstruct or impair" Price's view of Puget Sound. Price contends this language is unambiguous and that it requires outright removal of the Beechers' trees, regardless of the extent to which background trees may also impinge on his line of sight. Evidence extrinsic to a document can be used to illuminate its meaning, even when the disputed provision is unambiguous. Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990). This is because even when "words seem on their face to have only a single possible meaning, other meanings often appear when the circumstances are disclosed." Berg, 115 Wn.2d at 668 (quoting Restatement (Second) of Contracts sec. 214(c), comment b (1981)). The "context" rule of Berg applies to judicial interpretation of restrictive covenants. Hollis v. Garwall, Inc., 137 Wn.2d 683, 696, 974 P.2d 836 (1999).
Clerk's Papers at 198.
Below, he also argued that merely topping the cluster of 28 trees, instead of removing them, would impair his view by leaving an "unsightly mess" of misshapen snags and stumps. Report of Proceedings (2/26/02 v. II) at 72.
Having viewed the thickly forested area surrounding the development, the court determined that the covenant's intent was to "preserve views of the Puget Sound within the context of a housing development that does have trees and shrubs as part of its framework." Price argues this interpretation of the covenant is unsupportable in the absence of evidence that trees obstructed the views from any lot at the time when the covenants were drafted. But the lack of evidence that trees and shrubs obstructed the view in 1941 is not surprising considering that the development was new. And when a development is located in a forested area, it is reasonable to interpret a covenant as assuming trees and shrubs are part of the "framework," even if trees and shrubs within the development itself have not grown large enough to block views.
Finding of fact 6, Conclusion of law 4.
As the findings and conclusions show, the court did not ignore the plain language of the covenant. "The plain language of the covenant requires preservation of a view of Puget Sound, not the mountains or the sky or skyline." The court found that the five Douglas Fir trees did not impair Price's view of the Sound. Except for a few of the drooping lower branches, there would be "no benefit to the plaintiff if those trees were removed." As for the cluster of 28 trees on the west side of the Beecher property, the court found that the tops of some of them do "partially impair or obstruct" Price's view of Puget Sound, and directed that they be "thinned, topped, or removed", pursuant to the recommendations of a neutral certified arborist appointed by the Court and agreed to by the parties." The arborist was "charged with making a recommendation to the Court and the parties as to how far these trees can be cut or topped without endangering the health or vitality of the trees. The least drastic means for preserving the plaintiff's view shall be taken." Price argues that the court inappropriately gave the health of the trees a higher priority than the enforcement of the view covenant. Price misreads the court's conclusion. Implicit in the last sentence quoted above is a directive to preserve Price's view of the Sound. The arborist's duty is to determine the least drastic means for accomplishing this objective.
Conclusion of law 3.
Finding of Fact 10.
Finding of fact 11.
Conclusion of law 7.
Conclusion of law 7.
The court, in determining the proper interpretation of a covenant, must give unambiguous language its plain and reasonable meaning. Riss, 131 Wn.2d at 621. In determining intent, the court will place special emphasis on arriving at an interpretation that protects the homeowners' collective interest. Riss, 131 Wn.2d at 623-24. Applying these principles in the present case, the trial court concluded it was unreasonable "to interpret the covenant as meaning that every homeowner has a right to have a tree-less view of the Puget Sound. . . . The covenant does not require the entire line of sight to be cleared of all trees." Construing the intent of the covenant in the context of the forested location in which the development occurred protected the collective interest of the homeowners. As we understand the trial court's reasoning, the covenant does not demand removal of trees inside the development to open up a view of more trees, or sky or mountains.
Conclusion of law 5.
Because it was foreseeable that background trees would grow up on neighboring properties uncontrolled by the covenants, a covenant that prohibits maintaining trees that "obstruct" or "impair" a water view is reasonably interpreted as requiring removal of trees only if such removal will actually improve the water view. We find no error in the court's interpretation of the covenant's intent.
BALANCING THE EQUITIES
The court concluded that it had broad discretion in deciding whether to enforce the covenant. "In exercising that discretion the court will weigh the burden to the defendant against the benefit to the plaintiff." Upon weighing the relative burden and benefit, the court ultimately ruled that the parties would split the cost of cutting or topping the trees in the cluster of 28, and Price alone would bear the cost of obtaining any permit necessary to do so, "as he is the only party benefited by such cutting." Price argues that the court misunderstood the extent of its discretion. He takes the position that the Beechers knowingly violated the restrictive covenant, and therefore should be made to bear the entire cost of bringing their property into compliance.
Conclusion of law 2.
Conclusion of law 8.
Restrictive covenants are enforceable by injunctive relief. Piepkorn v. Adams, 102 Wn. App. 673, 684, 10 P.3d 428 (2000). The granting or withholding of an injunction is addressed to the sound discretion of the trial court, to be exercised according to the circumstances of the particular case. An injunction does not issue to a petitioner as an absolute right and is granted only on a clear showing of necessity. Holmes Harbor Water Co., Inc. v. Page, 8 Wn. App. 600, 603, 508 P.2d 628 (1973). Injunctive relief against the breach of a restrictive covenant will be denied if the harm done to the defendant by granting the injunction will be disproportionate to the benefit secured by the plaintiff. Holmes Harbor Water Co., Inc., 8 Wn. App. 600, 603, 508 P.2d 628 (1973). However, 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 upon another's property rights. Hollis, 137 Wn.2d at 699-700, citing Bach v. Sarich, 74 Wn.2d 575, 582, 445 P.2d 648 (1968). See also Foster v. Nehls, 15 Wn. App. 749, 551 P.2d 768 (1976) (defendant ordered to remove second story of home after proceeding with construction despite warning that height violated restrictive covenant); Piepkorn v. Adams, 102 Wn. App. 673, 685,10 P.3d 428 (2000) (defendant who completed construction of fence after being notified it violated restrictive covenant was not entitled to balancing of equities). Price contends that the Beechers are not innocent defendants. He argues that like the defendants in the above-cited cases, the Beechers knew they were acting contrary to his rights under the covenant. To establish that the Beechers knowingly violated the covenant, Price relies on his assertions that for almost a decade they ignored his repeated demands to top, limb, or remove the trees that had grown up in front of his home. But although Price cites evidence in the record from which the court might have made a finding that the Beechers were warned that their trees were violating the covenant, the court did not make such a finding. The only relevant findings on this issue state that the Beechers previously limbed the firs to improve the views of uphill neighbors, including the Prices, and that over the years they topped the other clump of trees to a height established by a certified arborist. In view of the facts found by the trial court, the view impairment created by growth of the 28 clustered trees is more like the problem in Holmes Harbor Water Co., Inc. In that case, the court found the defendants had violated a height limitation when building a house, but the violation was unintentional, the defendant had made an attempt to comply, the covenant provided no clear indication from where the height restriction should be measured, the plaintiffs had failed to prove substantial damages, and the cost of bringing the structure into compliance would far exceed any benefit to the plaintiffs. Holmes Harbor Water Co., Inc., 8 Wn. App. at 603.
Finding of fact 8.
Finding of fact 9.
Price argues for the first time in his reply brief that the Beechers had the burden of proving they were innocent defendants, and the absence of a specific finding on that point is equivalent to a finding against the Beechers. But an issue raised and argued for the first time in a reply brief is too late to warrant consideration by the appellate court. Yakima County (West Valley) Fire Protection District 12 v. Yakima, 122 Wn.2d 371, 397, 858 P.2d 245 (1993). In the absence of a finding that the Beechers were knowing violators, we cannot find the court erred when it balanced the relative hardships. Understandably, Price would prefer not to have sole responsibility for the potentially large cost of obtaining any permits necessary to cut or top the cluster of 28 trees. But the law does make broad discretion available to the trial court in fashioning an equitable remedy based on the circumstances of the case. And in this case, deference to the trial court's evaluation of the equities of the situation is appropriate for the additional reason that the trial judge visited the development and personally assessed the extent of the view impairment. Accordingly, we will not disturb the cost-sharing arrangement ordered by the trial court.
DAMAGES
Price contends the court erred in refusing to award damages for the obstruction to his view caused by growth in the cluster of 28 trees. The court found Price did not meet his burden of proving a diminution in the value of his property, or other loss compensable by monetary damages. While Price argues that the evidence presented by the Beechers' expert in this respect was not credible, it is the province of the trial court to determine credibility. Niemann v. Vaughn Community Church, 118 Wn. App. 824, 840, 77 P.3d 1208 (2003). We conclude the court's finding is supported by substantial evidence, and accordingly hold the court did not err in denying Price an award of compensatory damages.
The judgment is affirmed.
KENNEDY and APPELWICK, JJ., concur.
I dissent from that portion of the opinion which approves of allocation of permit costs and tree trimming to Price.
The majority believes the case to be similar to Holmes Harbor Water Company, Inc. v. Page, 8 Wn. App. 600, 508 P.2d 628 (1973). I do not. The Beechers knew or should have known the offending trees had grown or would grow and obstruct Price's view. They also knew of the covenant and their duty to trim their trees to prevent the view obstruction. Unlike the defendant in Holmes Harbor Water Company, Inc., the Beechers had not tried to trim their trees and made an inadvertent error, which resulted in some continuing impairment of view.
While the trial court may exercise broad discretion in fashioning a remedy, it may not change the duty under the covenant. Once the trial court determined a substantial breach of the covenant had occurred, the remedy was to fashion a proper order directing how much trimming of which trees was necessary to obtain compliance with the covenant. This is where the trial court's discretion began and ended. The burden of obtaining permits, hiring the personnel, and paying the costs of compliance is fixed by the duty under the covenant on Beecher. The trial court had no discretion to shift this duty, burden, and cost to Price. Doing so was error.
In all other respects, I concur with the majority.