IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

H. FREDRICK PETERSON,

Appellant,

v.

MARK H. REITER and CHRIS A. 

REITER, husband and wife,

Respondents.

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No. 37802-1-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Fredrick Peterson appeals the trial court’s summary 

judgment ruling that interpreted the word “Grantee” in a deed to include the original 

grantee’s successors. This interpretation permitted the Reiters, the original grantee’s 

successors, to rebuild their house on the deeded property. 

We interpret the word “Grantee” not in isolation, but in the context of the entire 

deed to determine the intent of the original parties. The deed reflects multiple purposes 

the parties sought to achieve. These purposes are frustrated if “Grantee” does not include 

the original grantee’s successors. We conclude that the entirety of the agreement clearly 

demonstrates that the original parties to the deed intended “Grantee” to include the 

FILED

DECEMBER 14, 2021

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
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2

original grantee’s successors. We affirm the trial court. 

FACTS

Fredrick Peterson is an experienced and well-established real estate developer in 

the Yakima Valley. In 1982, Mr. Peterson—through his company Crescent Properties, 

Inc.—obtained title via foreclosure auction to approximately 120 acres of property in the 

Yakima Valley. He intended (and still intends) to develop the property into a winethemed development featuring a winery, commercial, recreational, and retail areas, a 

resort, and residential options. 

In 1986, local businessman Eldon Graves sought to purchase a house at 15 Hardy 

Road, which was situated on a portion of Mr. Peterson’s property. The 7.69 acre parcel 

was entirely surrounded by Mr. Peterson’s property. Mr. Peterson and Mr. Graves 

negotiated the sale for months and settled on a final price of $200,000. The deed1reads, 

in pertinent part:

The Grantor, H. Fredrick Peterson . . . conveys to Eldon Graves 

[15 Hardy Road] 

. . . .

TOGETHER WITH 30-foot nonexclusive easement for ingress and 

egress . . . . Grantor and Grantee shall share equally the cost of 

maintaining such easement.

 

1 We attach the deed as an appendix to this opinion.
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. . . .

SUBJECT TO present and future assessments due by way of 

inclusion of the property with the boundaries of Yakima County 

Road Improvement District No. 69. Grantee agrees to cooperate 

with and support Grantor in the prosecution of [a lawsuit brought by 

Grantor, which] challenges the validity of the assessments . . . .

. . . .

SUBJECT TO use restrictions:[2] Grantor hereby reserves all 

future development rights for any “above-grade improvements” 

on the subject property, provided this restriction shall not 

preclude the Grantee from improving the property with one or 

more of the following type improvements, to-wit: landscaping; a 

three-car garage; residential-type swimming pool, either outdoor or 

enclosed within a compatible structure with pool decking and a bath 

house; and/or the repair or replacement of existing improvements 

in the event of damage or destruction of the same; and a fence 

which is mutually agreed upon by the Grantor and Grantee and is of 

a type architecturally consistent with other of Grantor’s property 

development within the general geographic area.

THIS RESERVATION OF RIGHTS[3]shall be the property of 

Grantor, retained by Grantor for the benefits of Grantor’s heirs 

and/or assigns and shall constitute a property right transferrable, in 

whole or part, only by document of conveyance executed by Grantor, 

or Grantor’s successors or assigns. By virtue of the reservation of 

development rights by Grantor, Grantee understands that the 

property subject to this Deed may not be subdivided or improved 

contrary to the terms of this restriction, unless Grantor conveys, in 

whole or part, such development rights to Grantee or Grantee’s 

assigns, by appropriate document of conveyance.

 

2 We refer to this paragraph as the “use restrictions” paragraph.

3 We refer to this paragraph as the “reservation of rights” paragraph.
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SUBJECT TO Grantor’s retained right to maintain landscaping on 

the subject property.

SUBJECT TO DEVELOPMENT OF ADJOINING PROPERTY: 

Grantor contemplates the possible development of adjoining property 

with a winery and resort condominium complex. Grantee

acknowledges the value of such development to the subject property 

and agrees to cooperate and support all applications, hearings and 

proceedings with respect to the development of the property. 

Specifically, it is anticipated that the development will require an 

application for planned unit development and not register any 

objection to such development application.

Clerk’s Papers (CP) at 108-09 (emphasis added). 

In 1997, Mr. Graves refinanced the property. The refinancing loan was for 

$368,000, secured by a deed of trust. The loan and security were subsequently assigned 

to The First National Bank of Chicago. 

In 1998, Mr. Graves defaulted on the loan. The property was reconveyed to the 

bank. Mark and Chris Reiter purchased the property from the bank in November 1999 for 

$270,000. In 2007, they bought a nearby parcel—11 Hardy Road. Over several years, the

Reiters spent more than $100,000 remodeling and upgrading their home, which included 

building a three-car garage. 

In March 2017, the Reiters’ home was completely destroyed by a fire. The home 

was insured and the Reiters received insurance proceeds. They began rebuilding, 

utilizing the original footprint and design. They asked Mr. Peterson for copies of his 
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county-approved plans showing his proposed structures for the surrounding areas. 

Throughout the years, Mr. Peterson had acquired adjoining property and his original 

120 acres had expanded to 317 acres. 

In July 2017, Mr. Peterson’s representative met with Mr. Reiter and discussed the 

reservation of rights in the deed and Mr. Peterson’s proposed purchase of the Reiters’ two 

properties on Hardy Road. The following month, Mr. Peterson spoke with Mr. Reiter 

personally about the reservation of rights and again offered to purchase the two

properties. He sent a letter the following day, which read in part:

Thank you for taking the time and meeting with Kim and I yesterday. We 

believe the purchase offer we made reflected a fair price for your two 

properties.[4]

One item in our conversation, which I did not understand, was your 

comment that the restrictions, in the original Deed (attached), “do not 

impact the marketability” of your property. I don’t agree with your 

observations with respect to “marketability” because the reservation of all 

future development rights for any “above-grade improvements” was clearly 

retained in a covenant which runs with the land.

By way of background, the deed restriction was specifically negotiated with 

Eldon Graves prior to preparation of the deed and closing of the property 

sale. The document is clear with respect to my future development plans 

and the potential conflict the home and other improvements would create in 

executing those plans. Accordingly, we negotiated the specific use 

 

4 The record does not reflect what Mr. Peterson offered the Reiters for the two 

properties. But in his complaint, he alleged that the value of 15 Hardy Road without the 

house was $69,200.
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restrictions with limited above-grade rights granted only to the “Grantee”—

Eldon Graves. . . .

CP at 173.

In 2019, Mr. Peterson learned that the Reiters had applied for and received a 

building permit from Yakima County for a single-family residence at 15 Hardy Road. 

Mr. Peterson’s counsel sent the Reiters a letter, reiterating Mr. Peterson’s prior position 

and threatening suit if they continued to rebuild. The Reiters’ general contractor

responded by saying he was advised by the Reiters’ insurance company and legal counsel 

to continue rebuilding the home.

Trial court proceedings

Mr. Peterson filed suit in Yakima County Superior Court seeking a declaratory 

judgment that the Reiters could not construct a single-family residential structure on the 

property and seeking attorney fees. The Reiters filed an answer and sought an order 

declaring that they could rebuild their house and for an award of attorney fees. 

Mr. Peterson eventually moved for summary judgment. He argued the use 

restrictions paragraph allowed only Mr. Graves, not his successors, to repair or replace

the destroyed house. He attached a lengthy declaration in support of his motion, which 

detailed many of the facts above. The declaration included purported discussions he had 

with Mr. Graves prior to the sale of the property:
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I disclosed to . . . Graves my plans for the development of the properties 

and advised that I would not sell the property without a full reservation of 

all above-grade development rights. At first, Graves rejected any 

limitations or reservations on the development rights for the property. 

Negotiations were at an impasse. We subsequently negotiated a significant 

price reduction of $50,000 for the property in exchange for my reservation 

of all “above-grade development rights.” The final purchase price for the 

property was reduced to Two Hundred Thousand Dollars ($200,000). This 

was well below the fair market value of the property. The price reduction 

reflected the retention of above-grade development rights. Graves stated 

his only interest was to live in the house during his lifetime.

CP at 85-86. 

The Reiters filed a cross-motion for summary judgment. They argued that 

“Grantee” included the grantee’s successor and that Mr. Peterson’s interpretation 

constituted an unreasonable restraint on alienation. They also argued Mr. Peterson’s 

purported discussion with Mr. Graves—who died years earlier—should be struck because 

it was inadmissible under RCW 5.60.030, the dead man’s statute. 

The trial court heard oral argument. After argument, the court orally denied Mr. 

Peterson’s summary judgment motion and granted the Reiters’ summary judgment 

motion. 

The trial court did not explicitly rule on the Reiters’ motion to strike. It later 

entered its summary judgment order that set forth the pleadings it considered, which

included Mr. Peterson’s declaration, without exception. 
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Mr. Peterson timely appealed. The Reiters did not cross-appeal the trial court’s 

failure to strike portions of Mr. Peterson’s declaration. 

Motion to strike filed in appellate court

The Reiters filed a motion to strike those portions of Mr. Peterson’s declaration

that contained his purported discussions with Mr. Graves. The Reiters argued that 

RAP 9.13 permits them to object to the trial court’s failure to exclude those discussions

from the record. In response, Mr. Peterson argued that the motion to strike was not 

appropriate in the context of a summary judgment appeal. 

The motion was argued to a court commissioner. The commissioner, mindful that 

this court must review the summary judgment record de novo, referred the motion to this 

panel.

ANALYSIS

We review summary judgment decisions de novo. Strauss v. Premera Blue Cross, 

194 Wn.2d 296, 300, 449 P.3d 640 (2019). Summary judgment is appropriate where the 

pleadings, admissions on file, and affidavits, if any, show that there is no genuine issue as 

to any material fact and that the moving party is entitled to a judgment as a matter of law. 

CR 56(c). 
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The dispositive issue in this appeal is whether the term “Grantee” in the 

reservation clause extends to Mr. Graves’s successors—the Reiters. 

Interpretation of deed

When interpreting a deed, we aim to give effect to and enforce the intent of 

the original parties. Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines 

Ass’n, 156 Wn.2d 253, 262, 126 P.3d 16 (2006). The intent of the original parties 

is determined from the deed as a whole. Sunnyside Valley Irrig. Dist. v. Dickie, 

149 Wn.2d 873, 880, 73 P.3d 369 (2003). In Newport Yacht Basin Ass’n of 

Condominium Owners v. Supreme Northwest, Inc., 168 Wn. App. 56, 64-65, 277 

P.3d 18 (2012) (footnote omitted) (quoting Tacoma Mill Co. v. Northern Pacific

Railway Co., 89 Wash. 187, 201, 154 P. 173 (1916)), we emphasized that the best 

evidence of the parties’ intent is the deed itself: 

[ ]“[I]f the intention of the parties may be clearly and certainly determined 

from the language they employ, recourse will not be had to extrinsic 

evidence for the purpose of ascertaining their intention.”[ ] This rule is a 

practical consequence of the permanent nature of real property—unlike a 

contract for personal services or a sale of goods, the legal effect of a deed 

will outlast the lifetimes of both grantor and grantee, ensuring that evidence 

of the circumstances surrounding the transfer will become both increasingly 

unreliable and increasingly unobtainable with the passage of time. 

Accordingly, the language of the written instrument is the best evidence of 

the intent of the original parties to a deed.
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We construe deeds using the same rules of construction that apply to contracts. 

Pelly v. Panasyuk, 2 Wn. App. 2d 848, 864, 413 P.3d 619 (2018). Washington courts 

follow the objective manifestation theory of contracts. Hearst Commc’ns, Inc. v. Seattle 

Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005). This approach requires us to focus 

on the “intention corresponding to the reasonable meaning of the words used” giving 

those words their “ordinary, usual, and popular meaning unless the entirety of the 

agreement clearly demonstrates a contrary intent.” Id. at 503-04.

The parties dispute the meaning of the term “Grantee” in the use restrictions 

paragraph. Mr. Peterson argues it means only Mr. Graves, the original grantee in the 

transaction. The Reiters argue it means Mr. Graves and his successors. The term is not 

defined in the deed. Courts may look to the dictionary definition to determine the 

ordinary meaning of an undefined term. Quinault Indian Nation v. Imperium Terminal 

Servs., LLC, 187 Wn.2d 460, 477, 387 P.3d 670 (2017). 

“Grantee” is defined as “one to whom a grant is made.” WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY 989 (1993). The legal definition is similar: “[o]ne to whom 

property is conveyed.” BLACK’S LAW DICTIONARY 845 (11th ed. 2019). If we were to 

focus on only one word in the deed, Mr. Peterson’s interpretation would prevail: Mr. 

Graves is the “one to whom” Mr. Peterson’s grant was made. But we do not focus on one 
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word when interpreting deeds. We look at the deed as a whole. Sunnyside Valley, 149 

Wn.2d at 880.

In his reply brief, Mr. Peterson agrees that the term “Grantee” must be given a 

consistent meaning throughout the deed. If “Grantee” means only Mr. Graves throughout 

the deed, this would frustrate the purpose of multiple provisions in the deed. For 

example, it would require Mr. Peterson and Mr. Graves to share the cost of maintaining 

the 30-foot access easement, but would not require Mr. Graves’s successors to share the 

cost. It would require Mr. Graves to cooperate and support Mr. Peterson in his lawsuit 

against Yakima County, but would not require Mr. Graves’s successors to do so. It would 

require Mr. Graves to cooperate and support Mr. Peterson’s winery and resort 

development applications, but would not require Mr. Graves’s successors to do so. 

It is evident from the deed that Mr. Peterson’s purpose was to ensure that 15 Hardy 

Road did not detract from the value of his future winery and resort. He did this by 

reserving the right to disapprove the fence surrounding the property if it was not 

architecturally consistent with his development and also by retaining the right to maintain 

landscaping on the property. This purpose would be frustrated if Mr. Graves’s successors

could not repair the existing house, resulting in a dilapidated structure next to an upscale 

winery and resort.
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It also is evident from the deed that Mr. Peterson conveyed the right to make 

residential-type improvements to the property, but reserved to himself the right to develop 

the property. Specifically, in the use restrictions paragraph, he allowed landscaping, a 

three-car garage, and a residential-type swimming pool with decking and a bath house. 

But in the reservation of rights paragraph that followed, he prohibited subdividing, 

improving, or developing the property contrary to the listed residential-type 

improvements. To enforce this prohibition, he required “Grantee or Grantee’s assigns” to 

obtain from him an appropriate document of conveyance if they sought to develop the 

property. CP at 109.

Mr. Peterson’s strongest argument that “Grantee” means Mr. Graves only is that 

the term “assigns” is used in the deed once, in the reservation of rights paragraph. CP at 

109. He argues that because the parties included the term “assigns” once in the deed, they 

purposefully omitted that and similar terms elsewhere. This singular argument does not 

persuade us to adopt an interpretation that frustrates multiple purposes of the deed. We 

conclude that the entirety of the deed clearly demonstrates that Mr. Peterson and Mr. 

Graves intended “Grantee,” as used throughout the deed, to include Mr. Graves’s

successors. 
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Personal covenants

Mr. Peterson next argues that the use restriction paragraph contains a personal 

covenant rather than one that runs with the land because it does not include the words 

“heirs and assigns” following “Grantee.” He cites two cases to support this contention: 

Ellensburg Lodge No. 20, I.O.O.F. v. Collins, 68 Wash. 94, 122 P. 602 (1912) and Feider 

v. Feider, 40 Wn. App. 589, 699 P.2d 801 (1985). 

In Ellensburg Lodge, adjoining property owners entered into a party wall 

agreement that provided for future cost sharing of a common wall between them. 68 

Wash. at 95. The agreement named the original parties and did not state it was binding on

successors or assigns. Id. at 97. The property owners sold their land and a dispute arose 

between subsequent owners. The court explained that a personal covenant is made when 

“‘there are no words indicating that the right to receive payment shall pass to his 

assigns’” whereas a covenant runs with the land when “‘the language used is between the 

parties and their assigns.’” Id. (quoting Hoffman v. Dickson, 47 Wash. 431, 92 P. 272 

(1907)). However, the court held that the obligations of the party wall had passed 

through successor deeds that expressly incorporated the party wall agreement, 

notwithstanding the fact that the agreement did not expressly mention assigns. Id. at 98. 
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In Feider, two brothers entered into an agreement that constituted a right of first 

refusal. 40 Wn. App. at 590. The agreement was not recorded until one of the brothers 

died and the other brother had sold his property to a third party. Id. at 591. The deceased 

brother’s heirs filed suit, seeking specific performance or damages for breach. Id. The 

trial court dismissed the action on summary judgment, finding the right of first refusal did 

not run with the land and was thus a personal contract. Id. at 592. The heirs appealed. 

This court affirmed, holding that the right of first refusal was not an interest in 

land and was presumed effective only for a reasonable time. Id. Accordingly, the right of 

first refusal was not enforceable by the deceased brother’s heirs and summary judgment 

was properly granted against them. Id. at 590-92. 

These cases are not particularly helpful to Mr. Peterson. Both concern written 

contracts independent from any conveyance of real property. Other than addressing 

issues of personal versus real covenants, the cases do little to support Mr. Peterson’s 

position because they are factually dissimilar in significant ways. Notably, they do not 

analyze which rights and restrictions are conveyed in a deed. Ellensburg Lodge is—if 

anything—more helpful to the Reiters because the court found the party wall agreement 

(which did not mention assigns) passed to assigns through a successor deed that 
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referenced the agreement. And Feider involves a right to first refusal, which is a personal 

covenant not at issue here.

Document of conveyance 

Mr. Peterson next argues that the reservation of rights paragraph requires the 

Reiters to obtain from him a document of conveyance if they want to rebuild their house. 

We disagree. 

As explained earlier, the reservation of rights paragraph requires Mr. Graves or his 

assigns to obtain from Mr. Peterson an appropriate document of conveyance before 

subdividing or improving the property contrary to the use restrictions paragraph. Here, 

the Reiters sought only to rebuild their house, an improvement that existed in 1987, 

something allowed in the use restrictions paragraph. Because the Reiters did not seek to 

improve the property contrary to the use restriction paragraph, they did not need to obtain 

an appropriate document of conveyance from Mr. Peterson.

Extrinsic evidence

Mr. Peterson contends that extrinsic evidence should not have been considered 

because there was no ambiguity in the deed. The Reiters argue that Mr. Peterson himself 

offered extrinsic evidence that contradicts his position, and extrinsic evidence may be 

used to help ascertain the meaning of the deed. We need not address Mr. Peterson’s 
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contention because extrinsic evidence plays no role in our decision to affirm the trial 

court’s ruling. We nevertheless explain why we have discounted portions of Mr. 

Peterson’s declaration that involve his discussions with Mr. Graves. 

“Extrinsic evidence is to be used to illuminate what was written, not what was 

intended to be written.” Hollis v. Garwall, Inc., 137 Wn.2d 683, 697, 974 P.2d 836 

(1999). It may not be used to redraft, contradict, or modify the language nor is it 

admissible to show a party’s subjective, unilateral intent. Id. at 696-97; Pelly, 2 Wn. App. 

2d at 866. 

In his declaration, Mr. Peterson asserted that he would not sell to Mr. Graves 

without a full reservation of all above-grade development rights and that he successfully 

reserved all above-grade development rights. This is inconsistent with the deed. The 

deed reflects that Mr. Peterson’s reservation of above-grade development rights was 

limited. It permitted residential-type improvements and allowed the repair and 

replacement of existing improvements. Also in his declaration, Mr. Peterson asserted that 

Mr. Graves said his only interest was to live in the house during his lifetime. We are 

unsure if he meant that Mr. Graves had no intention of developing the property or if he 

meant that Mr. Graves desired only a life estate. If he meant the latter, this also is 
No. 37802-1-111 

Peterson v. Reiter 

inconsistent with the deed. The deed conveys fee simple title to Mr. Graves. It does not 

reserve any present or future ownership in Mr. Peterson. 

To the extent that Mr. Peterson's statements contradict the deed, they are 

ineffective to contradict the deed and create an issue of material fact. For this reason, we 

need not rule on the Reiters' motion to strike. 

Affirm. 

A majority of the panel has determined 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. 

Lawrence-Berrey, J. 

j 

WE CONCUR: 

~~,.:r. 

Fearing,Y, 

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APPENDIX
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