Moses H. Ma And Kristine S. Ma-brecht-ma, Apps. v. James Larson And Patricia A. Larson, Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MOSES H. MA and KRISTINE S. No. 73715-5-1
MA-BRECHT-MA, husband and wife,
DIVISION ONE l-O
Appellants,
CZ
ro
JAMES LARSON and PATRICIA A. UNPUBLISHED OPINION
LARSON, husband and wife; and
ANTONETTE SMIT LYSEN, on her own J\3
behalf, o
Respondents. FILED: August 29, 2016
Schindler, J. — The "Covenants, Conditions, and Restrictions" (CC&R) that
govern the Shoreview plat limit single-family dwellings to "2/4 stories in height." Moses
H. Ma and Kristine S. Ma-Brecht-Ma (collectively, Ma) filed a declaratory judgment
action against Shoreview homeowners James Larson and Patricia A. Larson
(collectively, Larson) and Antonette Smit Lysen asserting the addition of a master
bedroom floor did not violate the CC&R. Larson and Lysen filed a counterclaim and
sought an injunction. On cross motions for summary judgment, Ma argued "1/4 story"
unambiguously refers to half the area of the main floor below. Larson and Lysen
argued the CC&R building restriction unambiguously refers to height and prohibits the
third-story addition. Ma appeals the order granting summary judgment in favor of
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Larson and Lysen, entry of the injunction, and the award of attorney fees and costs. We
affirm.
The material facts are not in dispute. In 1947, the owner and grantor recorded
the "Shoreview Addition" plat and a "Declaration of Restrictions, Reservations,
Easements and Covenants" (CC&R). The Shoreview plat is located in Burien and has
sweeping views of Puget Sound. The CC&R address the use of land and building
restrictions. The building restrictions state a single-family house shall not exceed "21/4
stories in height" and no house shall have "less than 1100 [square] [feet] of floor area."
1. Use of Land:
a[.] All lots in Shoreview shall be known, [described] and
used as and for residential purposes only. No commercial enterprise shall
be permitted in Shoreview, other than the business of selling [said] lots,
and the conducting of a utilities water system, and sewer system[.]
2. Building Restrictions.
a. Only one single detached one-family dwelling of not to
exceed 2Vz stories in height; and one private attached or unattached
garage for not more than 2 [cars] are permitted on any one lot, which
[said] structure shall meet all other restrictions of land and [building] as
provided herein.
b. No residence structure costing less than $10,000 shall
be erected or placed on any lots in [said] plat, except in [blocks] F. and G.
where no residence structure costing less than $7500 shall be erected or
placed on any lots in [said] [blocks], now [sic] shall any of [said]
residences have less than 1100 [square] [feet] of floor area exclusive of
porches and garages.
The CC&R state that in the event of a conflict with the zoning code, the code
"restrictions shall take precedence and be enforced."
In 1967, the Shoreview Homeowners Association recorded revised CC&R. The
revised building restrictions include an exception to the 21/4-story height limit for extreme
terrain, address when a daylight basement is considered "a story," and increase the
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minimum cost of a structure but maintain the same square footage requirement.
2. BUILDING RESTRICTIONS
(a) Only 1 single detached 1 family dwelling of not to exceed 214
stories in height, exceptions may be granted in cases of
extreme terrain. A daylight basement shall be considered a
story if more than 50% exposed. One private garage and/or
carport are permitted on any one lot, which said structure shall
meet all other restrictions of land and building as provided.
(b) No residence structure costing less than $20,000 shall be
erected or placed on any lots of said plat, except in Blocks F
and G where no residence structure costing less than $15,000
shall be erected or placed on any lots in said blocks, nor shall
any of said residences have less than 1100 square feet of floor
area exclusive of porches and garages.
Moses H. Ma and Kristine S. Ma-Brecht-Ma (collectively, Ma), James Larson and
Patricia A. Larson (collectively, Larson), and Antonette Smit Lysen own property in the
Shoreview plat. In 1967, Patricia Larson's parents purchased the property located at
12849 Shorecrest Drive SW. In 2001, her parents conveyed the property to Larson. In
1971, Lysen purchased property located at 12864 Shorecrest Drive SW. In 2005, Ma
purchased property located at 12843 Shorecrest Drive SW. The Ma property is next to
the Larson property. The Lysen property is across the street and slightly uphill from
Larson and Ma. The Ma house has a main floor and a daylight basement. Lysen's
house and Larson's house look directly down and over Ma's house toward Puget
Sound.
In October 2013, Ma submitted an application to the city of Burien for a
construction permit to "add on garage/renovate expand kitchen/add master bedroom
floor." The proposed plan would increase the main floor from 2,306 square feet to 2,340
square feet and add a master bedroom floor 19 feet 8 inches by 47 feet, or
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approximately 925 square feet. The "North Elevation" site plan shows the configuration
of the current footprint and the planned addition.
test. 510K F«as
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In 2014, the city of Burien issued a permit for the proposed renovation and
master bedroom floor. On September 10, 2014, Larson and Lysen sent a letter to Ma
objecting to the plan to build a third story. Larson and Lysen asserted the proposed
third story addition violated the 21/2-story height restriction in the CC&R and would
"seriously impact" their views.
On March 9, 2015, Ma filed a declaratory judgment action against Larson and
Lysen to determine whether the planned addition is barred by the 21/4-story height limit
in the CC&R. Larson and Lysen filed a counterclaim seeking a declaratory judgment
that the planned addition of the third story violates the CC&R. Larson and Lysen sought
an injunction and an award of attorney fees and costs.
The parties filed cross motions for summary judgment. Ma asserted the only
question was whether "covenant language limiting houses to two and a half stories in
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height prohibit the addition of a floor that is smaller than half the size of the main floor."
Ma argued "1/4 story" unambiguously means a story that is less than half the area of the
story below. Ma argued that even if the CC&R building restrictions refer to height, the
CC&R restriction conflicts with the 35 feet height limit of the city of Burien zoning code.
Larson and Lysen argued the "2/4 stories in height" restriction unambiguously refers to
height. Larson and Lysen submitted photographs showing the third floor addition to the
Ma house would block their views. Larson and Lysen also argued the CC&R building
restriction did not conflict with the city of Burien zoning code.
The court granted Larson's and Lysen's motion for summary judgment. The
court entered a permanent injunction that enjoined Ma from "constructing a house more
than 2-1/2 stories in height on their property adjacent to the Larsons' property." The trial
court awarded Larson and Lysen attorney fees and costs.
Ma contends the court erred in granting summary judgment. Ma asserts 14 story
unambiguously refers to floor space, not height. Larson and Lysen argue the CC&R
unambiguously restrict height.
We review an order on summary judgment de novo. Wilkinson v. Chiwawa
Cmtvs. Ass'n, 180 Wash. 2d 241, 249, 327 P.3d 614 (2014). A party is entitled to
summary judgment if there are no genuine issues of material fact and the party is
entitled to judgment as a matter of law. CR 56(c); Wilkinson, 180 Wash. 2d at 249.
Interpretation of a restrictive covenant is a question of law we review de novo.
Wimberlv v. Caravello, 136 Wash. App. 327, 336, 149 P.3d 402 (2006). Washington
courts apply the rules of contract interpretation. Wilkinson, 180 Wash. 2d at 249. The
primary goal in interpreting a covenant is to determine the intent of the drafter. Hollis v.
No. 73715-5-1/6
Garwall, Inc., 137 Wash. 2d 683, 696, 974 P.2d 839 (1999). Although the drafter's intent is
a question of fact," 'where reasonable minds could reach but one conclusion, questions
of fact may be determined as a matter of law.'" Wilkinson, 180 Wash. 2d at 250 (quoting
Ross v. Bennett. 148 Wash. App. 40, 49-50, 203 P.3d 383 (2008)).
In determining the intent of the drafter, a court must give the language of a
covenant its ordinary and common meaning and will not construe a term " 'so as to
defeat its plain and obvious meaning.'" Wilkinson, 180 Wash. 2d at 250 (quoting Mains
Farm Homeowners Ass'n v. Worthinqton, 121 Wash. 2d 810, 816, 854 P.2d 1072 (1993)).
We examine the language of a covenant in the context of the instrument in its entirety.
Hollis, 137Wn.2dat694.
Ma relies on testimony cited in a footnote in Foster v. Nehls, 15 Wash. App. 749,
751 n.2, 551 P.2d 768 (1976), to argue the reference to a "1/4 story" unambiguously
refers to the area of the main floor below. Ma asserts that because the proposed
master bedroom floor addition is 39 percent of the area of the main floor below, there is
no violation of the CC&R. Foster does not support Ma's argument.
In Foster, the neighbors objected to the construction of a second story to a home.
Foster, 15 Wash. App. at 750. The neighbors argued the second story would obstruct
their view in violation of the CC&R limiting a structure to " '[o]ne and one-half stories in
height.'" Foster, 15 Wash. App. at 750.1 The CC&R stated, in pertinent part:
"No structures shall be erected, altered, placed, or permitted to
remain on any residential building plot other than one detached single-
family dwelling notto exceed one and one-half stories in height and a
Emphasis omitted.
No. 73715-5-1/7
private garage for not more than two cars."
Foster, 15 Wash. App. at 750.2
At trial, the homeowner presented testimony of a city building inspector and a
contractor/real estate broker. The city building inspector testified that" '[o]ne and a half
stories in normal nomenclature'" means a second story " 'is half of the area'" of the
story below. Foster, 15 Wash. App. at 751 n.2. The contractor/real estate broker testified
that" 'one and a half story in architectural style would be a house that has the second
living area generally a portion percentage of the main floor area.'" Foster, 15 Wash. App.
at 751 n.2. But the contractor/real estate broker agreed that "the term [one and a half
story] involved architectural design rather than height of a building." Foster, 15 Wn.
App. at 751 n.2.
The trial court did not address the meaning of" 'one and one-half stories in
height.'" Foster, 15 Wash. App. at 750.3 The trial court concluded other evidence
showed the restrictive covenant prohibited construction of any residence that
substantially obstructs views. Foster, 15 Wash. App. at 750.
On appeal, the court states the testimony at trial on the meaning of" 'one and
one-half stories'" created ambiguity. Foster, 15 Wash. App. at 751.4
Ambiguity exists in the present case by the use of a floor-space
description common in the construction and real estate business ("one
and one-half stories") to describe a height restriction ("one and one-half
stories in height").
Foster. 15 Wash. App. at 751.5 The Foster court noted, "Doubtful intent must be resolved
2 Emphasis omitted.
3 Emphasis omitted.
4 Emphasis omitted.
5 Footnote omitted.
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in favor of the free use of land." Foster, 15 Wash. App. at 751.6 But the court concluded
the trial court properly considered other testimony that established "it was not the intent
of the parties to reduce the height restriction to an inches and feet definition, but to
protect the view enjoyed by other neighbors regardless of the actual height of the
obstructing buildings." Foster, 15 Wash. App. at 751.
Here, unlike in Foster, Ma presented no expert testimony about the meaning of
the term "V2 story." And unlike the CC&R in Foster, the language used in the Shoreview
CC&R establishes the intent of the drafter to refer to height, not to the square footage.
The CC&R building restrictions specifically refer to the square footage of floor space.
CC&R 2(b) states no residence shall "have less than 1100 square feet of floor area
exclusive of porches and garages." The language used shows the drafter intended the
"21/2 stories in height" as used in 2(a) to refer to height not to square footage and floor
space. Ma's interpretation also does not take into account the "in height" language.
See Better Fin. Sols., Inc. v. Transtech Elec. Inc., 112 Wash. App. 697, 711, 51 P.3d 108
(2002) (contracts must be read so that each provision is given effect and none is
rendered meaningless).7
The exception to the building restriction for 21/2 stories in height also indicates an
intent to interpret >2 story as a reference to height. The exception allows a house
6We note our Supreme Court expressly abandoned use of the rule that doubtful intent must be
resolved "in favor of the free use of land" in disputes between homeowners governed by the same
restrictive covenants. See Riss v. Angel. 131 Wash. 2d 612, 623, 934 P.2d 669 (1997) ("[W]here
construction of restrictive covenants is necessitated by a dispute . . . among homeowners in a subdivision
governed by the restrictive covenants, rules ofstrict construction against the grantor or in favor ofthe free
use of land are inapplicable.").
7The out-of-state cases Ma relies on are also inapposite. See Madden v. Zoning Bd. of Review
of Citv of Providence. 48 R.I. 175, 136 A. 493 (1927); O'Connell v. Citv of Brockton Bd. of Appeals, 344
Mass. 208, 181 N.E.2d 800 (1962); Johnson v. Linton, 491 S.W.2d 189 (Tex. Civ. App. 1973); Hinerv.
Hoffman, 90 Haw. 188, 977 P.2d 878 (1999).
No. 73715-5-1/9
located on "extreme terrain" to exceed the 2!4 stories height restriction to allow
construction that will not block the views of the uphill homes. The CC&R exception
demonstrates an intent to accommodate steep terrain while maintaining view
preservation. We conclude the unambiguous language of the CC&R establishes the
unambiguous intent to restrict the height of a house to 2>2 stories.
Even if the 21/4 stories restriction refers to height, Ma contends the CC&R conflict
with the zoning code. The CC&R state that "[i]n the event of conflict between these and
County Zoning Restrictions, the County restrictions shall take precedence and be
enforced."
The city of Burien zoning code allows a 35-foot-high single-family home. Burien
Municipal Code 19.15.005.2. Because the proposed addition would result in a house
that is less than 35 feet, Ma claims the CC&R conflict with the city zoning code. We
disagree. Because the zoning height limitation and the CC&R are not contradictory,
there is no conflict.
Where both the ordinance and the statute are prohibitory, and the
difference between them is that the ordinance goes further in its
prohibition, they are not deemed inconsistent because of mere lack of
uniformity in detail. . . . [T]hey are not "contradictory in the sense that they
cannot coexist."
Brown v. Citv of Yakima, 116 Wash. 2d 556, 562-63, 807 P.2d 353 (1991)8 (quoting Citv of
Seattle v. Eze, 111 Wash. 2d 22, 33, 759 P.2d 366 (1988)); see also Citv of Bellinqham v.
Schampera, 57 Wash. 2d 106, 111, 356 P.2d 292 (1960).
Ma also contends the court erred in awarding Larson and Lysen attorney fees as
special damages under the CC&R. The parties dispute whether Ma waived the right to
Internal quotation marks omitted.
No. 73715-5-1/10
challenge the attorney fee award on appeal. Larson and Lysen contend the undisputed
record shows Ma did not timely respond to the request for an award of attorney fees
and the court did not authorize or consider the untimely response.
On June 26, 2015, Larson and Lysen filed a motion requesting attorney fees and
costs. The motion was set for hearing without oral argument on July 9. King County
Superior Court Local Civil Rules (LCR) required Ma to respond by noon on July 7. LCR
7(b)(4)(D).9 Ma did not file a response on July 7.
At approximately 9:00 a.m. on July 8, Larson and Lysen filed a reply stating Ma
did not timely respond. At approximately 3:00 p.m. that same day, Ma filed a one and
one-half-page response to the motion for attorney fees and costs. Ma did not seek
permission to file a late response or assert good cause or excusable neglect. Larson
and Lysen objected to the late-filed response arguing Ma did not show good cause or
excusable neglect. The court did not authorize Ma to file the late-filed response and did
not consider the late-filed response. See LCR 7(b)(4)(G) ("Any material offered at a
time later than required by this rule, and any reply material which is not in strict reply,
will not be considered by the court over objection of counsel except upon the imposition
of appropriate terms, unless the court orders otherwise.").
Because the record establishes Ma did not timely file a response to the request
for an award of attorney fees and costs, Ma did not show good cause or excusable
neglect, and the court did not consider the late-filed response, we decline to consider
9 LCR 7(b)(4)(D) states, in pertinent part:
Any party opposing a motion shall file and serve the original responsive papers in
opposition to a motion, serve copies on parties, and deliver working copiesto the hearing
judge no later than 12:00 noon two court days before the date the motion is to be
considered.
10
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the challenge to the award of attorney fees and costs. RAP 2.5(a); see also Bennett v.
Hardy, 113 Wash. 2d 912, 917, 784 P.2d 1258(1990).
We affirm.
iQ.o.WO.Q.
WE CONCUR:
)VH^/yi/Vg^v J ^
11