DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 18841-8-III
Title of Case: Richard Cecil, Jr., et ux
v.
Country Ridge Homeowners Assoc., et al
File Date: 08/10/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Benton County
Docket No: 96-2-01746-6
Judgment or order under review
Date filed: 10/14/1999
Judge signing: Hon. Dennis D. Yule
JUDGES
------
Authored by John A. Schultheis
Concurring: Stephen M. Brown
Dennis J. Sweeney
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Ronald K. McAdams
Mcadams,ponti& Wernette
103 E Poplar St
Walla Walla, WA 99362-3028
Counsel for Respondent(s)
Harvey Faurholt
10 North Washington Ste.1
P.O. Box 7000
Kennewick, WA 99336-0414
George Fearing
Leavy Schultz Davis & Fearing
2415 W Falls Ave
Kennewick, WA 99336
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RICHARD CECIL, JR., and ) No. 18841-8-III
PATRICIA CECIL, husband and )
wife, )
) Division Three
Appellants, ) Panel Three
)
v. )
)
COUNTRY RIDGE HOMEOWNERS ) UNPUBLISHED OPINION
ASSOCIATION, INC., a Washington )
Corporation; and CITY OF )
RICHLAND, a Municipal )
Government Entity, )
) FILED August 10, 2000
Respondents.
SCHULTHEIS, J. -- Richard and Patricia Cecil appeal two summary
judgment dismissals entered at two different times by two different judges.1
Both dismissals were the result of a series of lawsuits, which ultimately
began with the parties' differing interpretations of an ambiguous
residential height restriction as set forth in the codes, conditions and
restrictions (CCRs) of the Country Ridge Homeowners Association, Inc. The
Cecils also appeal each court's denial of their cross-motions for summary
judgment against both the Association and the City of Richland.
The Cecils initially brought a lawsuit against their neighbors, the
Marsh family, requesting the court enjoin them from completing construction
of their home due to an alleged violation of the Association's restrictive
covenant regarding roof height. After that lawsuit was dismissed the
Cecils brought suit against the Association for failing to properly follow
the procedural and substantive requirements of the CCRs by approving the
neighbors' house plan and allowing the home to be built with the alleged
offending roof height. Later, the Cecils amended their complaint to add
the City as a defendant, contending it had assumed the duty of determining
compliance with the CCRs, and in that capacity had negligently used an
improper method of determining the height of the Marshes' roof. Because
the City did not assume the duty of enforcing the Association's CCRs and
because the Association reasonably and in good faith utilized the City's
computation of roof height, we affirm both trial court decisions.
Facts
The Cecils are resident homeowners in Country Ridge, a planned unit
development located in Benton County. The Cecils purchased their lot in
1978 from Country Ridge Development Company, a Washington corporation,
owned by Walter Kirkpatrick and Dennis Davin. At the time of purchase the
Cecils became members of the Association. The Association was originally
established pursuant to the Country Ridge Development Company's corporate
bylaws. Its membership consists of property owners within the development.
All purchasers of property in Country Ridge agree to be bound by the
Association's CCRs. The Association is empowered to enforce certain
restrictive covenants contained in the CCRs through its Architectural
Control Committee.
The CCRs set the maximum height restriction of a residence built in
the Country Ridge development at 25 feet. Mr. Kirkpatrick and Mr. Davin
were the original members of the committee that reviewed house plans for
compliance with the CCRs. When questioned about how the roof height was
measured under the original CCRs,2 Mr. Kirkpatrick recalled that it was
measured from the ground floor level to the highest point on the roof as
viewed from the house plans. He also admitted that when he served on the
committee, he did not ever go out to a residential lot to measure the roof
height or check for partially blocked views at any time during
construction.
Mr. Kirkpatrick and Mr. Davin transferred responsibility for the
Association to the homeowners in approximately 1983. At that time the new
board members took over the business of running the Association, including
the collection of dues, building plan approval and the enforcement of the
CCRs. Mr. Kirkpatrick and Mr. Davin completely divested their partnership
interest in the development in 1984 or 1985 when they returned
approximately 30 unsold lots to the City for financial reasons.
Although the Cecils purchased their lot in Country Ridge in 1978, they
did not build their dream home until about 1994. The Cecils paid a premium
price for their lot because it was located at one of the highest points in
the development, which gave them one of the best views of the surrounding
area. The Cecils received a copy of the original CCRs when they purchased
their lot.
The Cecils had been Association members for about 11 years at the time
the CCRs were amended in 1989. The record does not reveal whether the
Cecils were actively involved in the amendment process or whether they
voted to amend the CCRs. The amended CCRs, like the original CCRs,
enumerate certain protective covenants including the same 25-foot maximum
roof height restriction. The amended CCRs do not reflect the drafters'
intent on how the roof height of new homes is to be determined.3 However,
two Association members who have served continuously on the Architectural
Control Committee for about 13 years testified that the members of the
committee understood that they did not have the expertise to determine roof
height calculations. These and other committee members interviewed
testified that they knew that the Association roof height restriction and
the City code height restrictions were identical (e.g., 25-foot maximum).
As a result, the committee members told the court that if the City staff
had accepted the roof height on building plans that had been submitted for
approval by an Association member then the committee automatically approved
the roof height restriction on behalf of the Association. Testimony
revealed that roof height was only one item on the Association's list of
restrictive covenants with which each potential home in the development had
to comply in order to gain committee approval. The committee and the
Association made independent investigations into other aspects of a
prospective home's building plan to check for compliance with the CCRs
prior to approving it.
The Association gave the Marshes' plans full approval in September
1995. The Marshes' house plans had twice been rejected by the committee
for noncompliance with the CCRs, for reasons other than the height of the
roof. Shortly after their plans were approved by the Association the
Marshes began construction on their home, which was located across the
street from the Cecils. Approximately four months after construction had
begun, Mr. Cecil reviewed the Marshes' house plans because of his concern
that the Marshes' roof height violated the CCRs, thus, partially blocking
his scenic view. Mr. Cecil brought his concerns before the Association.
He was informed that the CCRs had the same maximum roof height requirement
as did the City of Richland. It was at that time that Mr. Cecil learned
that the Association relied on the City staff's calculations regarding a
building plan's compliance with the Association's 25-foot maximum roof
height restrictive covenant.
Mr. Cecil then began to question City staff about the height of the
Marshes' roof. He was told that while the City reviewed building plans in
order to establish compliance with the City height restriction, it was not
responsible for enforcing the Association's 25- foot maximum height
restriction. Accordingly, Mr. Cecil was directed to take his concerns back
to the Association. Getting nowhere with the City or the Association, the
Cecils exercised their legal right to enforce the covenants by bringing a
lawsuit in equity against the Marshes, which was ultimately dismissed. The
current litigation began in November 1996 and was dismissed in 1999.
Discussion
The Cecils contend the trial court erred when it granted a summary
judgment dismissal in favor of the City and denied their cross-motion for
partial summary judgment. In making its decision the court found that the
City had not voluntarily assumed the duty of enforcing the Association's
CCRs. Accordingly, the Cecils' cross-motion for partial summary judgment
regarding negligence, violation of the public duty doctrine and collateral
estoppel was denied.
When reviewing an order of summary judgment, an appellate court
engages in the same inquiry as did the court below. We will affirm the
order of summary judgment if no genuine issue of any material fact exists
and the moving party is entitled to judgment as a matter of law. CR 56(c).
Factual issues and reasonable inferences therefrom are considered in the
light most favorable to the nonmoving party. Questions of law are reviewed
de novo. Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341,
883 P.2d 1383 (1994). We may sustain a lower court's decision on any
theory established by the pleadings and supported by the evidence. Id. at
344.
The City claims the doctrine of collateral estoppel bars this court
from hearing this appeal. We disagree. Collateral estoppel applies when
(1) the issues are identical; (2) the prior adjudication ended with a final
judgment on the merits; (3) the party against whom the plea is asserted was
a party to the prior adjudication; and (4) application of the doctrine does
not work an injustice. Hanson v. City of Snohomish, 121 Wn.2d 552, 562,
852 P.2d 295 (1993). Here, the issue on appeal is whether the City assumed
the duty of checking the Association members' compliance with the
restrictive covenant regarding roof height, not whether the Marshes' roof
violates the Association's CCRs. The Cecils are not barred from presenting
this appeal on the basis of collateral estoppel.
In our consideration of the Cecils' appeal, the City correctly notes
that Mr. Kirkpatrick's deposition testimony cannot be considered in
reaching our decision regarding the summary judgment dismissal because it
was not part of the record below. RAP 9.12. While this is a true
statement, the deposition testimony is not necessary to our analysis
because the trial court did not reach the issue of whether the Marshes'
roofline violated the Association's and/or the City's 25-foot residential
height restriction.
Our examination of the evidence, viewed in the light most favorable to
the Cecils, does not establish that the City assumed the duties of the
Association to enforce compliance with the Association's CCRs regarding
roof height. The record does reveal that, in checking compliance with the
City building code, City staff computed the roof height of all residential
building plans brought before it that were to be constructed within the
City limits, including those in the Country Ridge development. Evidence
presented shows that while the City made a roof height determination,
neither the City nor the Association believed the City was responsible for
enforcing the roof height restriction for the Association. There is no
evidence in the record that could lead one to conclude that the City, in
checking a builder's plans for compliance with the City code, assumed the
duty of the Association's Architectural Control Committee to review those
same plans in order to measure compliance with its CCRs. Accordingly, the
trial court properly determined that there was no breach of that duty or
negligent representation by the City as alleged by the Cecils.
The City also contends the public duty doctrine prevents this court
from considering the Cecils' appeal. Because the City did not assume any
duty on behalf of the Association, we need not address this issue.
The Cecils also request that we review the summary judgment dismissal
in favor of the Association and the denial of their cross-motion for
partial summary judgment. The trial court had additional documents before
it that were not before the court in the case discussed above. Of
particular significance, the court reviewed the deposition testimony of Mr.
Kirkpatrick, one of the original founders of the Country Ridge development.
Because the same standard of review regarding summary judgment applies, as
does the argument regarding collateral estoppel, we need not repeat those
portions of the above analysis here.
In Washington, covenants that provide for consent from a homeowner's
association prior to construction will be upheld as long as the authority
to consent is exercised reasonably and in good faith. Riss v. Angel, 131
Wn.2d 612, 625, 934 P.2d 669 (1997). We are asked to review the trial
court's decision that the Association made a reasonable and good faith
determination that the City's method of computing the 25-foot maximum roof
height could be utilized in the committee's review of the plans of
prospective homebuilders within the Country Ridge development. To do so we
must ascertain and give effect to the purposes intended by the
Association's CCRs. Because there is ambiguity regarding the method of
computation of roof height in the Association's 1989 amended CCRs, we
consider evidence of the surrounding circumstances in an attempt to
discover the Association's intent. Id. at 623.
Mr. Cecil introduced the reluctant testimony of Mr. Kirkpatrick who
told the court that his intent, when he first formed the Architectural
Control Committee, was that roof height would be measured from ground level
to the highest point on the roof. However, Mr. Kirkpatrick did not serve
on the committee after 1983 and had completely divested himself of any
interest in the Association after 1985. After that time, he did not offer,
nor was he ever approached for advice on how to conduct the business of the
Association or the committee.
Although the amended CCRs did not specify how roof height would be
measured, several members of the current committee testified that it had
always been their understanding that it would defer to the City's
determination of roof height on Association building plans since the City
code and the Association's CCRs regarding roof height were identical. More
importantly, the committee members relied on the City measurements because,
unlike the original Architectural Control Committee, none of the current
members possessed the technical expertise to determine roof height
calculations on their own. The facts presented reveal that the committee
independently investigated other portions of the restrictive covenants with
which they were reasonably educated. The Association board and the
committee members are comprised of a group of average homeowners who live
in the Country Ridge development and volunteer their time and talents for
the good of the entire Association. It does not seem reasonable to expect
these volunteers to have expert knowledge in the area of building codes and
roof height computation. Under the particular facts of this case, the
committee's decision to defer a roof height computation to City staff
appears to be a reasonable and good faith determination.
We agree with the trial court that there are no disputed facts
regarding whether the Association breached its duty to act reasonably and
in good faith when approving house plans for new construction within
Country Ridge. Summary judgment was properly entered in favor of the
Association and the City, and the Cecils' cross-motions for summary
judgment were properly denied.
Affirmed.
A majority of the panel has determined that this opinion will not be
printed in the Washington Appellate Reports but it will be filed for public
record pursuant to RCW 2.06.040.
/s/
Schultheis, J.
WE CONCUR:
/s/
Brown, A.C.J.
/s/
Sweeney, J.
1 The first summary judgment dismissal (in favor of the City of Richland)
was issued by a judge on August 2, 1999. The second summary judgment
dismissal (against the Country Ridge Homeowners Association) was issued by
a different judge on October 14, 1999.
2 The CCRs were amended in 1989.
3 Article VII, section 2 of the CCRs states in part: 'No structure or
buildings of any kind shall be erected, altered, placed, or permitted to
remain on any residential lot other than the detached single family
dwelling for single-family occupancy only, not to exceed twenty-five feet
in height . . . .'