COURT OF APPEALS DIV

C T AT p n C m :\ c;!;; y C TI -: •.!

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

2013 MAY 28 fi.J1 8=31

REGINALD PETER SAUNDERS and

ELIZABETH SAUNDERS, husband and

wife; and MICHAEL A. O'BRIEN and

MARCY L. O'BRIEN, husband and wife,

Respondents,

v.

VERNON I. MEYERS and VIRGINIA C.

MEYERS, husband and wife; MEYERS

REVOCABLE LIVING TRUST; JOHN DOE

and JANE DOE, trustees of the Meyers

Revocable Living Trust; and JOHN DOE

and JANE DOES, beneficiaries of the

Meyers Revocable Living Trust,

Appellants.

No. 68249-1-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: May 28, 2013

Appelwick, J. — The Somerset Covenants Review Committee decided the

Meyerses' mature maple tree violated a restrictive covenant protecting views and

required that the tree be trimmed or removed. The trial court granted summary

judgment enforcing that decision. However, the CRC's decision was based upon an

incorrect interpretation of the covenant and was not enforceable. We void the decision

of the CRC, reverse the order of the trial court, and remand for award of costs to the

Meyerses and dismissal of the action.

FACTS

This appeal arises from a single, mature maple tree on Vernon and Virginia

Meyerses' property that partially obscures the views of their uphill neighbors. The tree

is approximately 70 feet tall and 60 feet wide, with a trunk nearly fourfeet in diameter.
No. 68249-1-1/2

In 1962, Evergreen Land Developers Inc. (Evergreen) subdivided and platted the

Somerset neighborhood of Bellevue, Washington. Somerset is situated on a hillside

with westerly views of Seattle, Mercer Island, Lake Washington, and the Olympic

Mountains. Evergreen created the Somerset Building Committee (Building Committee)

and put it in charge of reviewing building plans and enforcing Somerset's restrictive

covenants ("the covenants" or "CCRs"). In 2001, by covenant amendment, the

Covenants Review Committee (CRC) replaced the Building Committee, assuming its

rights, powers, and authorities. The primary subject of this appeal is CCR U 10:

10. FENCES AND HEDGES.... No trees of any type, other than

those existing at the time these restrictive covenants of Somerset, Division

No. 2, Somerset, Division No. 4 and Somerset, Division No. 6 are filed,

shall be allowed to grow more than twenty (20) feet in height, provided

they do not unnecessarily interfere with the view of another residence.

The Building Committee shall be the sole judge in deciding whether there

has been such interference. In case of violation, the Building Committee

shall be the sole judge in deciding whether there has been such

interference. In case of violation, the Building Committee shall have

enforcement powers as set forth in Paragraph 1 of GENERAL

PROVISION.

The CRC interpreted this provision, applied it to the Meyerses' maple tree, and ordered

them to trim the tree as directed or remove it.

In 1970, the Meyerses purchased unimproved lot 117, which included the maple

tree, then measuring around 70 feet tall and 30 feet wide. The Building Committee

approved the Meyerses' building plans, and their home was constructed shortly

thereafter.

Three years later, in 1973, Peter and Elizabeth Saunders built their home uphill

from the Meyerses' existing home. In the late 1970s, 1980s, and 1990s, they asked the

Meyerses to trim the maple tree. The Saunderses recalled that the Meyerses "liked
No. 68249-1-1/3

their tree, it was the reason they bought their house, and as far as the covenants were

concerned, the tree was grandfathered."

Michael and Marcy O'Brien purchased their home uphill from the Meyerses in

1997.1 Soon after, the O'Briens asked the Meyerses to prune minimal portions of the

maple tree's lower limbs to enhance their view. The Meyerses' arborists routinely

maintained the health of the tree and reduced its height from 70 feet to 63 feet in the

1990s and 2000s.

In 2006, the CRC met with Gerald Harkleroad to clarify ambiguities in the tree

height covenant. Harkleroad worked as a project manager for Evergreen from 1967 to

1974.2 During that time, he reviewed house plans and mediated homeowner disputes

about interpretation and enforcement of the restrictive covenants.

Based on its meeting with Harkleroad, the CRC issued a view guideline, but did

not amend the covenants. The CRC wrote that the spirit of the guideline was to

preserve homeowner views the way they were when the house was built. It explained,

"[Tjhis Guideline will not be applied in a way that would force a downhill Owner to

expand or enlarge the View that existed when the relevant Main Floor Living Space was

Built." (Emphasis in original.) The guideline also addressed CCR H10:

The 20' provision means two things. First, "new" trees shall not be

allowed to grow more than twenty (20) feet. Second, the twenty (20) foot

height restriction does not apply to Grandfathered Trees, provided they do

not unnecessarily interfere with the view of another residence. If either

tree unnecessarily interferes with the view of another residence it must be

trimmed to a lower height so the resulting view restoration is sufficient to

prevent the tree from "unnecessarily interfering with the view of another

residence."

1The O'Briens' home was constructed in 1962.

2Harkleroad acknowledged that he did not draft the Somerset covenants.
No. 68249-1-1/4

(Emphasis in original) (quoting CCR U10).

After receiving 11 formal complaints about the maple tree, the CRC investigated

whether it unnecessarily interfered with views. On May 28, 2009, the CRC sent the

Meyerses a letter directing them to trim the tree's canopy to 30 feet wide. The CRC

wrote that the tree was approximately 70 feet tall in 1964, but was only 30 feet wide at

the time. Since then, the tree's width doubled to over 60 feet wide, which the CRC

concluded unnecessarily interfered with neighbors' views. The CRC explained:

Original large trees that were already tall enough so that a neighbor did

not have a particular view over the tree at the time of the covenants could

continue to grow higher as long as it did not block other existing views.

There would be no taking of a view since there was no pre-existing view to

be taken. However, this does not allow a tree to take away an

existing view by spreading out in the horizontal plane. This is what

has happened with your tree. A tree's width can have as much impact on

a neighbor's view as the tree's height.

(Emphasis in original.) The CRC noted that if trimming the tree to 30 feet wide would

adversely affect the tree's health, then it should be removed.

In April 27, 2010, the CRC sent the Meyerses another decision letter requiring

them to trim the height of the tree to the actual level it had been in 1967. The CRC

explained that it did not address tree height in its first decision, because it did not have

verifiable information regarding the height of the tree. But, based on new evidence, the

CRC concluded that there used to be a view of the Olympics over the tree. The CRC's

decision letter included a photo with a red line designating the height at which the tree

must be trimmed.
No. 68249-1-1/5

When the Meyerses did not comply with the CRC's decisions, the Saunderses

and O'Briens3 sued for breach of covenant and injunctive relief in April 2011. They

requested that the Meyerses be ordered to trim or remove the maple tree, pursuant to

the CRC's decisions.

Both parties made cross motions for summary judgment, disputing the

interpretation of CCR U 10. The Meyerses also moved to strike evidence, which the trial

court denied. The court subsequently granted the Saunderses' motion and denied the

Meyerses' motion for summary judgment. The court ordered the Meyerses to comply

with the CRC's May 28, 2009, and April 27, 2010, decisions.

The trial court later denied the Meyerses' motion for reconsideration requesting

dismissal of the Saunderses' claims for failure to join the Somerset Homeowners

Association and the CRC as necessary parties under CR 17 and CR 19. The Meyerses

appealed.

DISCUSSION

The crux of the Meyerses' appeal is whether their maple tree is subject to size

restrictions and what CCR H 10 means by "unnecessary interference." But, the

Meyerses also dispute the CRC's authority to make a view obstruction determination.

And, they argue that the Saunderses failed to join the CRC as a necessary party. They

contend that an enforcement action to trim or remove the tree is barred by equitable

doctrines such as estoppel and laches. And, lastly, the Meyerses ask us to vacate the

trial court's award of attorney fees and costs, because there is no basis in the

covenants for such an award.

We refer to them collectively as the Saunderses.
No. 68249-1-1/6

I. The CRC's Authority to Determine View Interference

CCR U 10 provides that the "Building Committee shall be the sole judge in

deciding whether there has been such an interference." By proper amendment of the

covenants, the CRC replaced the Building Committee and was given "the same rights,

powers and authorities as the Building Committee." Under these plain terms, the CRC

is empowered to determine whether trees unnecessarily interfere with views.

The Meyerses argue that the CRC possessed no authority to revoke or repudiate

the Building Committee's prior approval of their building plans. They explain that when

the Building Committee approved their building plans in 1970, it did not require them to

remove or alter their maple tree. Therefore, they argue, this constitutes a final, binding

decision on the maple tree that cannot be attacked. Similarly, the Meyerses argue,

without much analysis, that the Saunderses are barred from relief under RCW 4.16.040

and 4.16.080, as well as the doctrines of collateral estoppel, equitable estoppel,

estoppel by silence or acquiescence, unjust enrichment, and laches. They explain that

the Saunderses did not instigate the action until 40 years after the Building Committee

approved their building plans.

We find no support in the covenants for the Meyerses' argument that the Building

Committee's approval of building plans forecloses future attempts to enforce the tree

height covenant.4 First, there is no evidence that the Building Committee considered

4 See Christensen v. Grant County Hosp. Dist. No. 1. 152 Wn.2d 299, 307, 96

P.3d 957 (2004) (requiring party asserting collateral estoppel to prove four elements,

including that the identical issue was already presented in an earlier proceeding and

ended with a judgment on the merits); see also Carrillo v. Citv of Ocean Shores, 122

Wn. App. 592, 610-11, 94 P.3d 961 (2004) (requiring the elements of equitable estoppel

to be proven by clear, cogent, and convincing evidence).
No. 68249-1-1/7

the tree in approving the Meyerses' building plans. Second, retaining the existing tree

did not require approval because it had been grandfathered. Third, most of the

surrounding property was as yet undeveloped, without resident neighbors to complain

about a view obstruction. Moreover, unlike buildings, trees grow and change with time.

The record before us shows that the tree's width has doubled since 1970 when the

Meyerses built their home. This makes application of collateral estoppel and laches

particularly inequitable.

In addition, the Meyerses knew the restrictive covenants protected views of other

property owners when they purchased their lot, even if they did not believe that

grandfathered trees were subject to size restrictions.5 Bauman v. Turpen, 139 Wn. App.

78, 93-94, 160 P.3d 1050 (2007) (holding that laches, equitable estoppel, and

acquiescence did not apply where homeowners knew of a view deed restriction and that

views were important to their neighbors). Therefore, we hold that the Saunderses'

enforcement action is not barred by the theories advanced by the Meyerses.

II. Homeowner's Authority to Bring an Enforcement Action

CCR H 10 provides, in part: "In case of violation, the Building Committee shall

have enforcement powers as set forth in Paragraph 1 of GENERAL PROVISION." The

Meyerses argue that this provision means that Evergreen, the Building Committee, and

the successor CRC are the only parties entitled to bring a view obstruction enforcement

action. Therefore, they contend, absent the CRC's joinder under RCW 7.24.110, CR

5 Simply because the Meyerses believed that the unnecessary interference

restriction did not apply to their tree does not make it so. See, e.g.. Bloome v. Haverlv,

154 Wn. App. 129, 138-39, 225 P.3d 330 (2010) (holding that a homeowner's personal

belief as to the scope and meaning of a view covenant was inadmissible extrinsic

evidence).
No. 68249-1-1/8

17, and CR 19, the trial lacked subject matter jurisdiction and the case must be

dismissed.

We find the Meyerses' argument unpersuasive for two reasons. First, they

misconstrue subject matter jurisdiction. Washington superior courts have broad subject

matter jurisdiction. Const, art. IV, § 6. The critical concept in determining whether a

court has subject matter jurisdiction is the type of controversy. Cole v. Harveyland,

LLC, 163 Wn. App. 199, 209, 258 P.3d 70 (2011). Therefore, a court's jurisdiction does

not turn on the presence or absence of a party. Wimberlv v. Caravello, 136 Wn. App.

327, 334, 149 P.3d 402 (2006). Instead, failure to join affects only the court's authority

over the absent party. ]d. We review a court's decision that a party is not indispensible

for abuse of discretion. Id.

Second, the Meyerses ignore CCR U 1, which states:

If the parties hereto or any of them or their heirs or assigns shall

violate or attempt to violate any of the covenants herein, it shall be lawful

for any person or persons owning any real property situated in Somerset,

Division No. 3, Somerset, Division No. 4, and Somerset, Division No. 6 to

prosecute any proceedings at law or in equity against the person or

persons violating or attempting to violate any such covenant and either

prevent him or them from so doing or to recover damages or other dues

for such violation.

CCR U 1 explicitly gives Somerset homeowners a legal right to enforce all of the

covenants against other homeowners. The Meyerses are correct that CCR U10 gives

the CRC power to enforce that particular covenant, but CCR U1 entitles homeowners to

do the same. Therefore, the Saunderses are entitled to bring a legal action directly

against the Meyerses for violating the covenants.

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No. 68249-1-1/9

This is well supported in the case law. In Wimberlv, one homeowner sought to

enforce a restrictive covenant against another homeowner. 136 Wn. App. at 332. Like

here, the neighborhood association had authority to enforce the covenants. IcL at 331.

But, the terms of the covenant also allowed anyone owning land in the subdivision to

bring a civil action to enforce the covenants, id. The court held that the association

was neither a necessary nor an indispensible party in the covenant enforcement action,

id. at 334-35. The association would not be prejudiced by the litigation and the

homeowners did not assert or defend a claim against the association. Jd. at 335.

Like in Wimberlv. the Saunderses did not assert any claim against the CRC.

Rather, they sued to enforce the covenant, which they were entitled to do under the

plain terms of CCR H 1. We hold that the trial court acted within its discretion in

determining that the CRC was not an indispensible party in an action by homeowners to

enforce CCR H 10.

III. Interpretation of the Covenant's Restriction on Trees

The Meyerses argue that CCR U10 created an express exception for all existing

trees, including their maple tree. Therefore, they contend, their maple tree is not

subject to any size restrictions—either height or width. As a result, the Meyerses argue,

the trial court's order enforcing the CRC's decisions is erroneous. They also assert that

the CRC and trial court impermissibly relied on extrinsic evidence to restrict the size of

grandfathered trees.

Our primary task in interpreting a restrictive covenant is to determine the

covenant drafter's intent by examining the clear and unambiguous language of the

covenant. Bauman, 139 Wn. App. at 88-89. While the interpretation of a restrictive

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No. 68249-1-1/10

covenant is a question of law, intent is a question of fact. id. at 89. We review

questions of law de novo and questions of fact for substantial evidence, id. at 87. We

must place special emphasis on arriving at an interpretation that protects the

homeowners' collective interests. Riss v. Angel. 131 Wn.2d 612, 623-24, 934 P.2d 669

(1997). In Washington, the purpose of the covenant is the paramount consideration,

rather than the free use of land. id. at 623.

Washington courts apply the Berg context rule to interpret restrictive covenants.

Hollis v. Garwall. Inc.. 137 Wn.2d 683, 696, 974 P.2d 836 (1999) (citing Berg v.

Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990)). Extrinsic evidence is admissible to

determine the meaning of specific words and terms used in the covenant. Ross v.

Bennett, 148 Wn. App. 40, 46, 203 P.3d 383 (2008). But, admissible extrinsic evidence

does not include (1) evidence of a party's unilateral or subjective intent as to the

meaning of a contract word or term; (2) evidence that would show an intention

independent of the instrument; or (3) evidence that would vary, contradict, or modify the

written word. id.

CCR H 10, which imposes restrictions on trees and is central to this dispute,

reads in pertinent part:

No trees of any type, other than those existing at the time these restrictive

covenants ... are filed, shall be allowed to grow more than twenty (20)

feet in height, provided they do not unnecessarily interfere with the view of

another residence.

This language is far from a model of clarity. However, some things are clear. The

covenant neither prohibits trees altogether/nor prohibits view obstructions altogether.

The owners' rights to trees and views are balanced against each other. Some trees are

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No. 68249-1-1/11

subject to an absolute 20 foot height limit, and some are not. A view interference

proviso applies to some, if not all, of the trees. What must be determined is whether the

maple tree is grandfathered from the height restriction, whether it is grandfathered from

the view restriction proviso, and if not, what it means to unnecessarily interfere with the

view of another residence.

For ease of reference, a tree existing at the time the restrictive covenants were

filed will be referred to as an existing tree. A tree planted after the restrictive covenants

were filed will be referred to as a new tree.

A. Existing Trees Are Exempt from the 20 Foot Height Restriction

Undisputedly, the maple tree at issue existed at the time the restrictive covenants

were filed. However, the Saunderses asserted below that the developer intended the

grandfather exception to apply to only madrona and evergreen trees. They relied on the

declaration testimony of Gerald Harkleroad, the developer's project manager, to

establish the intent of the covenant.6 While evidence is admissible to show the drafter's

intent, it is not admissible to change the terms of the covenant. Ross, 148 Wn. App. at

46; see also Hollis, 137 Wn.2d at 697 ("Extrinsic evidence is to be used to illuminate

what was written, not what was intended to be written."). CCR U 10 grandfathers "those

6 In a December 1989 declaration, Harkleroad explained:

7. Though the covenant language restricting tree height may seem

to except from its coverage "trees in existence" at the time the covenants

were recorded, the understanding of those involved at the time, including

myself, was that this language was intended to cover the full grown

Madrona and other evergreen trees in the subdivision.

His own intent is not at issue; he did not draft the covenant. His testimony about what

others involved understood is not admissible. His understanding of the covenant at the

time and how he applied the covenants is proper extrinsic evidence.

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No. 68249-1-1/12

ftreesj existing at the time" the covenants were filed, not just evergreens and madronas.

The term "trees" is not ambiguous. It is in no need of interpretation. The plain meaning

is not limited to evergreen and madrona trees. The covenant cannot be rewritten to

exclude maple trees in the guise of determining intent.

We conclude that the Meyerses' maple tree was an existing tree and exempt

from the 20 foot height limit imposed on new trees.

B. Existing Trees Are Subject to View Restriction Proviso

The next question is whether the view interference proviso applies to existing

trees. The proviso begins with the term "provided," which is defined as "on condition

that" or "with the understanding" that. Webster's Third New International Dictionary

1827 (2002); Black's Law Dictionary 1345 (9th ed. 2009). The condition imposed is

that "they do not unnecessarily interfere with the view of another residence." The

parties disagree asto whether the word "they" refers to all trees or merely new trees.7

The Meyerses would have us read the provision as: "No new tree shall be

allowed to grow more than 20 feet in height, nor may a new tree unnecessarily interfere

with the view of another residence. Existing trees are not subject to these restrictions."

This interpretation suggests that the drafter's were not concerned with view obstruction

from existing trees, even those 60 feet tall and growing taller and wider. This

interpretation also suggests that the drafters were instead concerned only that new

trees might block views unnecessarily, even though they would approximate the height

of homes in the single family development.

7 Neither party argues that the proviso does not apply to new trees. The CRC

interpreted the clause as applying to both new and existing trees.

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No. 68249-1-1/13

Conversely, the Saunderses would have us read the provision as: "New trees

shall not be allowed to grow more than 20 feet in height, and no tree may unnecessarily

interfere with the view of another residence." This interpretation of the covenant

suggests the drafters intended to protect all views from unnecessary interference by any

tree, with the determination on a tree-by-tree basis.

Neither suggested interpretation is per se unreasonable. Where a provision is

subject to more than one interpretation it is ambiguous. In re Pet, of Aston, 161 Wn.

App. 824, 842, 251 P.3d 917 (2011), review denied, 173 Wn.2d 1031, 277 P.3d 68

(2012). We find this covenant provision to be ambiguous. Therefore, we look to the

intent of the drafters to determine its meaning. Ross, 148 Wn. App. at 46. The intent of

the proviso is to protect views. In fact, there is no apparent reason to impose

restrictions on trees except to protect views. With this as the primary concern, it is

unlikely that the drafters would have been overly concerned with new, height-limited

trees obstructing views, but have no concern whatsoever that existing trees, some

already 60 feet high, would become even larger view obstructions.

The term "they" in the proviso at the end of the sentence reasonably may be read

to refer back to "[n]o tree" at the beginning of the sentence. The term "no tree"

encompasses every tree in the development; existing trees noted in the exception are

merely a subset. Or, the term "they" could be read to apply to both new trees subject to

the 20 foot height limit and those existing trees exempt from it. If the proviso was

intended to apply only to new trees, the restrictions easily could have been drafted

without reference to or exemption for existing trees: No tree planted after the filing of

these covenants may exceed 20 feet in height or unnecessarily interfere with the view of

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No. 68249-1-1/14

another homeowner. The structure of the proviso suggests it was intended to apply to

existing trees as well as new trees.

And, the importance of protecting the views of Somerset residents is apparent

from this and other covenants. For instance, CCR 1J 3 prohibits above-ground current or

telephone wires, as well as aerial antennas extending more than six feet above the

highest point on a building. CCR H4 requires that the Building Committee consider "the

effect or impairment that [improvements, construction and alterations] will have on the

view of surrounding building sites" before approving them. CCR H 4 also grants the

CRC authority to establish the maximum height of each residence before construction.

Similarly, Harkleroad explained that the purpose of restricting tree height was to protect

the views of Somerset residents. He clarified that "[p]eople moved to and live in

Somerset for the views not the trees. ... The main focus for Evergreen as it developed

Somerset was to preserve views."

Preserving neighboring views is a recognized interest and is not per se

unreasonable. Bauman. 139 Wn. App. at 91. Covenants preserving views will be

upheld when substantial evidence supports them. id. Substantial evidence supports

the conclusion that Somerset's scenic views are an intrinsic part of the aesthetic and

monetary value of the lots. See Black v. Evergreen Land Developers, Inc., 75 Wn.2d

241, 247, 450 P.2d 470 (1969) (recognizing Somerset's "'sweeping panoramic view of

Lake Washington, the Olympic Mountains, Seattle and Mercer Island'") (quoting trial

court finding of fact 15)).

We conclude that the drafters intended the proviso to apply to all trees within the

development regardless of when they were planted. Therefore, both new and existing

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No. 68249-1-1/15

trees are subject to size restriction if they unnecessarily interfere with another

homeowner's views.

C. Unnecessary Interference with View

Our final determination is what constitutes an unnecessary interference with a

view from another residence. A person whose view is obstructed will feel the

interference is unnecessary. A person who owns a tree will feel the interference is

necessary. The CRC, which is the sole judge of when interference with the view is

unnecessary, may have its own feelings. But, the proviso does not use a subjective

"unreasonable interference" standard. Rather, it requires that the interference be

unnecessary. What is a necessary interference depends on a balancing of rights, not

feelings or preferences. Property owners have the right to own trees. The covenant

conditioned this right, but did not take it away. Property owners also have a right to

views. But, it is not an absolute right. The covenants did not prohibit every interference

with views, only the unnecessary interference. And, the covenants did not expressly fix

the size of trees or the maximum view obstruction as they existed when the covenants

were filed. Nor do we believe such a provision isfairly implied.8

8 Despite this, the CRC appears to have determined that view rights vested

based on the dimensions of trees that existed when the covenants were filed. Under

that theory, view rights would absolutely trump any growth of existing trees and planting

of any new trees. The term "unnecessarily" would be effectively read out of the

covenant with respect to new trees, because every interference with a view by a new

tree would be subject to abatement. Cox v. Helenius. 103 Wn.2d 383, 387, 693 P.2d

683 (1985) (requiring every word of a provision to be given effect if possible). And, for

existing trees, the term "unnecessarily" would be effectively defined as "interfering with

a view more than at the time the covenant was filed." The proviso would be given

different meanings for new and existing trees, rather than uniform application.

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The portions of the tree necessary to its survival are a necessary interference

with the view of another residence. What is necessary for survival may change as the

tree matures. To the extent the crown of a tree can be trimmed without threatening its

survival, its interference with the view of another residence is unnecessary. But, the

covenants do not expressly grant authority to order a tree trimmed in a manner that will

threaten its survival, though it may be reasonably implied for new trees due to the

absolute 20 foot height limit. Decisions regarding what is an unnecessary interference

must be factually based, applying the correct standard. The burden is on the party

seeking enforcement of the CRC decision to demonstrate that it does not exceed what

is authorized by the covenant.

The correct standard was not applied by theCRC or by the trial court.9 The CRC

ordered the Meyerses to remove the maple tree if trimming it to 30 feet wide would

adversely affect the tree's health. Therefore, we void the decision of the CRC and

reverse the decision of the trial court enforcing that decision.

IV. Attorney Fees and Costs

Lastly, the Meyerses contend that the trial court erred in awarding attorney fees

and costs. They contend that even if the Saunderses properly prevailed, CCR H 1

authorizes an award of only costs, not attorney fees, to homeowners seeking to enforce

the covenants. The superior court awarded the Saunderses and O'Briens $65,149.47 in

9 The Meyerses argue at length that the CRC's decision was nonbinding,

unreasonable, and arbitrary. The Meyerses are correct that the CRC's decision must

be reasonable under Rjss, 131 Wn.2d at 627. Because the CRC's decisions were

based on an incorrect interpretation of the covenant, they are unreasonable as a matter

of law. But, we note that nothing in the covenants precludes the Somerset

Homeowners Association or the CRC from creating view guidelines to aid their

decisions nor from utilizing voluntary mediation or some other informal processes.

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attorney fees and $7,118.04 in costs, pursuant to CCR If 18, RCW 4.84.330, and

chapter 64.38 RCW.

In Washington, absent a contract, statute, or recognized ground of equity,

attorney fees will not be awarded as part of the costs of litigation. City of Seattle v.

McCreadv, 131 Wn.2d 266, 275, 931 P.2d 156 (1997). Whether a particular contractual

provision authorizes an award of attorney fees as costs is a legal question. Tradewell

Grp.. Inc. v. Mavis, 71 Wn. App. 120, 126, 857 P.2d 1053 (1993).

CCR If 1 permits homeowners to sue other homeowners for violating the

restrictive covenants. CCR 1f 1 provides: "All costs incurred in enforcement shall be at

the expense of the violator or violators." (Emphasis added.) Conversely, CCR If 18

states:

In the event of litigation arising out of enforcement of these restrictive

covenant [s]. .. the grantee or grantees so involved, shall be liable for the

payment of all attorney fees court costs and/or other expense or loss

incurred bv Evergreen Land Developers. Inc., in enforcing these restrictive

covenants.

(Emphasis added.) CCR H 18 extends attorney fees to Evergreen's successors, as

well.

The Somerset covenants clearly distinguish between attorney fees and costs.

They award attorney fees only to Evergreen and its successors, while limiting

homeowners to costs. This makes sense, because it protects the developer from costly

litigation with nonconforming homeowners. Here, homeowners sought to enforce the

covenants, not Evergreen or its successor. Because the covenant distinguishes

between attorney fees and costs, there is no basis to award attorney fees as part of the

costs of litigation.

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And, the Saunderses cite no other persuasive basis for attorney fees. RCW

4.84.330 is not applicable, because it only applies to instruments entered into after

September 21, 1977. The Somerset restrictive covenants took effect in 1962. Similarly,

RCW 64.38.020(4) and RCW 64.38.050 authorize a homeowners association to initiate

litigation and collect attorney fees as the prevailing party. But, the Somerset CRC was

not a party here. Therefore, the prevailing party in this action is entitled to an award of

only costs, not attorney fees, both at trial and on appeal.

Because we reverse the decision of the trial court, the Meyerses are the

prevailing party. Because they requested costs at trial, they will be entitled to an award

of costs on remand. They have not sought costs on appeal, so we award none.

We void the decision of the CRC, reverse the order of the trial court, and remand

to the trial court with instructions to award costs to the Meyerses and to dismiss the

action.

WE CONCUR:

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