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. )

) ) ) ) ) ) ) ) ) No. 37802

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UNPUBLISHED OPINION

L AWRE NCE

- B ERREY , J.

— Fredrick Peterson appeals the trial court’s summary judgment ruling that interpreted the word “Grantee” in a deed to includ e the original
g rantee’s successors . This interpretation permitted the Reiter s , 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. T hese purposes are frustrated if “ Grantee ” does not include the original g rantee’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 IIINo. 37802

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2 original grantee’s successors. W e 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 auctio n to approximately 120 acres of property in the Yakima Valley. He intend ed (and still intends) to develop the property into a wine

themed development featuring a winery, commercial, recreational, and retail areas, a resort, and residential options.
In 1 986, local businessman Eldon Graves sought to purchase a ho us e 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 t he sale for months and settled on a final price of $200,000

. The deed 1 reads, 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.No. 37802

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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. Gran tee 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 with in a compatible structure with pool decking and a bath house; and/or the repair or replacem ent of existing improvements in the event of damage or destruction of the same ; and a fence which is mutually agreed up on 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 docu ment of conveyance.

2 We refer to this paragr aph as the “use restrictions” paragraph.
3 We refer to this paragraph as the “reservation of rights” paragraph.No. 37802

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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 condominiu m 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 10 8

- 0 9 (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 l oan. The property was re conveyed 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, t he 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 hisNo. 37802

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5 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 an d 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 pu rchase 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 o ur 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 rese rvation 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 res tric tion was specifically negotiated with Eldon Graves prior to preparation of the d eed 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. B ut in his complaint, he alleged that the value of 15 Hardy Road without the house was $69,200.No. 37802

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6 restricti ons 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 Ro ad.
Mr. Peterson’s counsel sent the Reiters a letter , reiterat ing 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 le gal 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 reside ntial structure on the property and se eking attorney fees. T he 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 o nly 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 include d purported discussions he had with Mr. Graves prior to the sale of the property :No. 37802

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7 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 limitati ons or reservation s 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 hi s only interest was to live in the house during his lifetime. CP at 85

- 86.
T he Reiters filed a cross

- motion for summary judgment. They argued that “Grantee” included the g rantee’s successor and that Mr. Peterson’s interpretation constituted an unreaso nable 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, t he dead man’s statute.
T he trial court heard oral argument. A fter argument , the court orally denied Mr. Peterson’s summary judgment motion and grant ed 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 s et forth the pleadings it considered, which included Mr. Peterson’s declaration , without exception

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8 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
T he Reiters filed a m otion to strike those portions of Mr. Peterson ’s d eclaration that contained his purported discussions with Mr. Graves . The Reiters argued that RAP 9.13 permits them to object to the trial court’s fail ure to exclude those discussions from the record . In response, Mr. Peterson argued that the motion to strike wa s not appropriate in the context of a summary judgment appeal. The motion was argued to a court commissioner. The c ommissioner, 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 appropriat e 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).No. 37802

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9 The dispositive issue in this appeal is whet her the term “Grantee” in the reservation clause extends to Mr. Graves’ s s ucces sors

— 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 V a l le y Irr ig . Dist. v. Dickie , 149 Wn.2d 873, 880, 73 P.3d 369 (2003). In Newport Yacht Basin Ass’n of Condo minium Owners v. Supreme N orthwest , Inc. , 168 Wn. App

. 56, 64

- 65, 277 P.3d 18 (2012) (footnote omitted) (quoting Tacoma Mill Co. v. Northern Pac ific
R ailway Co. , 89 Wash

. 187, 201, 154 P. 173 (1916)) , we emphasized that the best evidence of t he 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 r ule 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 circumstanc es surrounding the transfer will become both increasingly unreliable and increasingly unobtainable with the passage of time. Accordingly, the langu ag e of the written instrument is the best evidence of the intent of the original parties to a deed.No. 37802

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10 We con strue 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

- 0 4. The parties dispute the meaning of the term “ G rantee” in the use restrictions paragraph

. Mr. Peterson argues it means only Mr. Graves, the original grantee in the transaction. The Reiters argue i t 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.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 989 ( 1993 ). The legal definition is similar: “ [ o ] ne to whom property is conveyed.” B LACK ’ S L AW D ICTIONARY 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 oneNo. 37802

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11 word when interpreting deeds. We look at the deed as a whole. Sunnys ide 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 pro visions 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 successor s to share the
cost. I t would r equire Mr. Graves to cooperate and sup port Mr. Peterson in his l awsuit against Yakima County, but would not require Mr. Graves’ s successor s 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. Grave s’ 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 a nd also b y retaining the right to maintain landscaping on th e property. Th is purpose would be frustrated if Mr. Graves ’ s successor s could not repair the existing house , resulting in a dilapidated structure next to an upscale wine ry and resort

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12 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. Specific ally, 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 dev eloping the property contrary to the listed residential

- type improvements . To enforce this prohibition, he required “G rantee or Grantee’s assigns” to
obtain from him an appropriate document o f conveyance if they sought to dev elop 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 de ed, 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.No. 37802

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13 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 “ G rantee.” He cites two cases to support this contention: Ellensb urg 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 bind ing 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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14 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 th em. 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 suppo rt 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 t he party wall agreement (which did not mention assigns) passed to assigns through a successor deed thatNo. 37802

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15 referenced the agreement. And Feider involves a right to first refusal, which is a personal covenant not at issue here. Document of conveyance
Mr. P eterson next argues that the reservation of rights paragraph requires the Reiters to obtain from him a document of conveyance i f they want to rebuild their house. We disagree. As explained earlier, the reservation of rights paragraph requires Mr. Grave s or his assigns to obtain from Mr. Peterson an appropriate document of conveyance before subdividing or improving the property contrary to the u se restrictions paragraph . Here, the Reiters sought only to rebuild their house, an improvement that existed i n 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.
Extrinsi c e vidence
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 evide nce may be used to help ascertain the meaning of the deed. We need not address Mr. Peterson’sNo. 37802

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16 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 ma y 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 assert ed that he would not sell to Mr. Grave s without a full reservation of all above

- grade development right s 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 righ ts was limited. It permitted residential

- type improvements and allowed the repair and replace ment of existing improvements

. Also in his declaration, Mr. Peterson assert ed that
Mr. Graves s aid his only interest was to live in the house during his lifetime

. We are unsure if he mean t that Mr. Graves had no inten tion of developing the property or if he

mean t that Mr. Graves desired only a life estate. If he mean t the latter, t his also isNo. 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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# APPENDIXNo. 37802

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19No. 37802

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20No. 37802

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