is further ORDERED that a substitute unpublished opinion shall befiled. DATED this -`e day of k‘k ORDERED that the opinion filed on December 19, 2016 is withdrawn; and it

rri

, 2017. 

### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE BIRNEY DEMPCY and MARIE DEMPCY,husband and wife,and their marital community, Appellants,

V. CHRIS AVENIUS and NELA AVENIUS, husband and wife, and their marital community;JACK SHANNON,an individual; and RADEK ZEMEL,an individual, Respondents. No.73369-9-1 ORDER WITHDRAWING AND SUBSTITUTING OPINION

Respondents, Chris Avenius, Nela Avenius, Jack Shannon, and Radek Zemel, have filed a motion for reconsideration. Appellants, Birney Dempcy and Marie Dempcy, have filed a response. A panel of the court has considered the motion and determined that it should be granted and that the previous opinion should be withdrawn and a substitute unpublished opinion should be filed. Now, therefore,it is hereby

coCZ) Cor)
> •"7-3. rn

— 1:11 CD —11

, •^7 0) rn

• • X"' c)

— CO 1*A 

### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON BIRNEY DEMPCY and MARIE DEMPCY, husband and wife, and their marital community, Appellants,

V. ) ) ) No.73369-9-1 DIVISION ONE UNPUBLISHED OPINION
CHRIS AVENIUS and NELA AVENIUS, ) husband and wife,and their marital ) community;JACK SHANNON,an ) individual; and RADEK ZEMEL,an ) individual, ) ) Respondents. ) FILED:April 3, 2017 ) 

### APPELWICK, J. — Partition of a common area created by the deeds of the adjacent properties was not available to the trial court as a remedyfor the owners' inability to agree on the use or maintenance of the common area. However,the declaratory judgmentthatthe CC&Rsgoverning the neighborhood require at least two ownersto vote in favor ofan assessmentforextraordinary maintenance ofthe
common property was proper. The deeds do not require perpetual maintenance ofa tennis court on the common property. The Aveniuses are entitled to attorney fees on appeal related to the CC&R claims. We reverse in part and remand.No. 73369-9-112

FACTS Birney and Marie Dempcy, Chris and Nela Avenius, Jack Shannon, and Radek Zemel own the four properties making up the Pickle Point neighborhood in Bellevue. Each ofthe neighbors owns a one-fourth interest in a common property located in the neighborhood. The neighborhood is governed by a declaration of protective covenants, restrictions, easements, and agreements (CC&Rs). The CC&Rs provide restrictions on how the Pickle Point properties can be used. The CC&Rs also establish an architectural control committee (ACC)consisting of one member for each of the properties. And,the CC&Rs provide that each owner has the right to use and enjoy the common property according to its nature and subject to the restrictions within the CC&Rs. The common property consists ofa lawn,a retaining wall, landscaping,and
access roads. The common property also contains a tennis court. The tennis court hasfallen into a state ofdisrepair. The Dempcys have been concerned about the condition of the tennis court since at least 2003. Their repeated efforts to persuade the other owners to refurbish the tennis court were unsuccessful. In 2013, the ACC discussed the tennis court at several meetings. The Dempcys once again urged the other owners to agree to repair the tennis court. But,the other ownersvoted against repairing the tennis court. TheACC ultimately voted against having a tennis court or any athletic court in the common property.

2No.73369-9-1/3

The Dempcys sued the Aveniuses, Shannon, and Zemel (collectively the Aveniuses). They soughta declaratory judgmentthatthe Aveniuses are obligated to maintain the tennis court and contribute to the cost of maintenance. Both sides moved for summary judgment. The trial court denied the Dempcys' motion for summary judgment, but granted the Aveniuses' motion for partial summary judgment. It ordered the common property to be partitioned. At the Aveniuses' request, the court also entered a declaratory judgment that only two votes are necessary to approve special assessments for extraordinary maintenance costs of repairing the common property and tennis court. The court also awarded attorney fees to the Aveniuses. The Dempcys appeal. DISCUSSION The Dempcys assert that the exceptions to the right of partition apply here,
so the trial court erred in ordering partition. They argue that the trial court erroneously interpreted the CC&Rs as requiring the votes of only two owners to approve special assessments for extraordinary maintenance of the common property. Further, the Dempcys contend that by interpreting the CC&Rs in this way, the trial court interfered with their right to maintain the common property themselves and seek contribution from the other co-owners. They claim that the trial court erred in concluding that the CC&Rs bar their suit against Shannon for damages. And, the Dempcys challenge the award of attorney fees to the Aveniuses. The Aveniuses, in turn, request attorneyfees on appeal.

3No. 73369-9-1/4

On an appeal ofa summaryjudgmentorder,this courtengages in the same inquiry asthe trial court. Ellis v.City ofSeattle, 142Wn.2d 450,458,13P.3d 1065 (2000). We consider the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Tran v. State Farm Fire & Cas.Co., 136Wn.2d 214,224,961 P.2d 358(1998). Summaryjudgmentis proper ifthere is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ellis, 142Wn.2d at 458. If reasonable minds could draw different conclusions from the undisputed facts, summary judgment is not appropriate. Chelan County Deputy Sheriffs'Ass'n v. Chelan County, 109 Wn.2d 282,295,745 P.2d 1 (1987). The interpretation of a restrictive covenant is a matter of law reviewed de
novo. Bauman v. Turpen, 139 Wn. App. 78, 86, 160 P.3d 1050 (2007). The primary task in reviewing a restrictive covenant is to determine the intent of the drafters and the purpose of the covenant at the time it was drafted. Id. The drafters' intent is to be determined by examining the clear and unambiguous language ofthe covenant. Id. at 88-89. I. Partition ofthe Common Property The Dempcys contend that the trial court erred in ordering the common property to be partitioned. They argue that the exceptions to the right of partition apply here.

4No.73369-9-1/5

RCW 7.52.010 provides that one or more tenant in common may bring an action to partition real property. If partition cannotbe madewithoutgreatprejudice to the owners,a tenant in common may bring an action for sale of the commonly owned property or a part of it. Id. In Washington,the right of partition by a tenant in common has been described as absolute. Hamilton v.Johnson, 137Wash.92, 100,241 P.672(1925). Tenants in common havethe rightto partition the property, so long as there is no agreementto hold the property in a tenancy in common for
a definite and fixed time. Id. It is no defense to partition that partition would be inconvenientforthe other owners or result in a depreciation in value ofthe owners' property interests. Id. But,the rightto partition is subjectto several exceptions. Carterv.Weowna Beach Cmty.Corp., 71 Wn.2d 498,502,429 P.2d 201 (1967). The rightto partition is not available where a cotenant, by his own acts, is estopped or has waived his right by express or implied agreement, or where his cotenant's equitable rights will be minimized or defeated[,] or in violation ofa condition or restriction imposed upon the estate by one through whom he claims. Id. (citations omitted). In Carter, the purchasers of 81 residential lots all received
a 1/81 part ofthe adjoining tract. Id. at 498-500. Each deed provided, "Together with an undivided one-eighty-first parts and share of, in and to the private community Park, being the West 715 feet and water thereon of government lots one, two, three and four, on the westshore ofLake Sammamish,in said County and State,all ofsaid four lots having been subdivided and shown on unrecorded plat and designated as WEOWNA BEACH,all subject, however,to the following covenants,reservations and restrictions,to-wit: "The grantee covenants with grantors that this deed and possession ofthe premises hereby conveyed is accepted subject:

5No.73369-9-1/ 6

61 "(2)Tothejointand common use,pleasure and benefitofsaid private community park by the several owners of the remaining 81 tracts in said Weowna Beach,including all waterthereon,and on that part of said Tract hereby conveyed lying West of said proposed County Road,and the right to lay and maintain service water pipes for the equal distribution of water to the several owners of said 81 Tracts, under such arrangement and plan as a majority of such owners shall determine, including the right to form a water district under the laws ofthe State ofWashington." Id.at500(emphasis omitted). TheWashington Supreme Court held thatresidents could not sell their lots free and clear of this deed restriction, because they purchased their properties with full knowledge of the rights of other purchasers. Id. at 502. They could not later claim the absolute right to sell the property in a way that would destroy those rights and violate their own agreement. Id. Like in Carter, the Pickle Point common area was created by the same deedsthatcreated thefour residential properties. The original owners ofthe Pickle Point neighborhood divided the area into five parcels by recording four statutory warranty deeds. These deeds transferred title to the four residential properties. The owners of the four residential properties each received an undivided onefourth interest in the common property. By these deeds, the grantors created equitable interests in the common area that inure as a fact of owning a residential property. The existence of these equitable interests is bolstered by the language of Section 5.1 of the CC&Rs,which provides, "Each owner of a parcel shall have
a right to use and enjoy the common property according to the nature of that property and subject to the restrictions contained in this Declaration." The co6No.73369-9-1/7

owners'equitable interests would be defeated if the common property were to be partitioned without the agreement of all four co-owners.1 The trial court erred in ordering the common property to be partitioned. II. Maintenance ofthe Common Property The Dempcys also challenge the trial court's declaratory judgmentthattwo votes of the ACC are necessary for decisions regarding special assessments for extraordinary maintenance costs of the common property. And, they assert an independent right to maintain the common property and then seek contribution for the expenses. The CC&Rs plainly delegate the task of maintaining the common property to the ACC. Section 5.3 instructs the ACC to establish rules, hold meetings, and impose regular and special assessments for the common property. Section 5.5 requires the ACC to, once a year, "determine the amount of money necessary for the ordinary maintenance of the common property and the operation of the Committee." This amount is to be equally divided amongst the Pickle Point
owners. And,Section 5.6 governs special assessments. It provides, Ifthe Committee determines that a special assessment is necessary for the extraordinary maintenance of or capital improvements to the common property, the Committee shall send a notice of special assessmentto the owners of all parcels. This notice shall include a statement of the reasons such an assessment is necessary, the amount to be assessed, the method of payment proposed by the Committee,and the date and place for a meeting to discuss such a special assessment. This meeting shall be held nosoonerthan thirty (30)days from the date of the notice of special assessment. The 1 Thedivision ordisposition ofthe common property requiresthe agreement of all co-owners. 7No. 73369-9-1/8 meeting will be conducted according to the rules adopted by the Committee,and the ownerofeach parcelshall be entitled to one vote for each parcel. Approval of a special assessment shall require consent of 50% ofthe Parcels excluding Parcel 5. By authorizing the ACC to determine the amount necessary for ordinary maintenance,decide when a special assessmentforextraordinary maintenance is necessary,and voteto assessthe co-ownersforextraordinary maintenance costs, the CC&Rsdelegate authority over maintenance decisions to the ACC. Underthe terms of the CC&Rs,the ACC may exercise this authority so long as at least two ofthe four co-owners consent. The importance of the property being maintained is highlighted by the CC&Rs. Section 5.1 protects the co-owners'rights to use and enjoy the property according to its nature. And,Section 6.1 states,"Any owner of property within the property subject to this Declaration shall have the right to enforce the Covenants contained in this Declaration through an action at law or in equity." Where theACC has not discharged its maintenance duties in a reasonable and timely manner,an owner may ask the court to enforce the maintenance obligation, as the Dempcys have done. The CC&Rs,however,do not authorize self-help.2

2 While the Dempcys contend that self-help is available, they rely only on cases that did not involve a committee or any allocation of responsibility amongst the co-owners. See Yakavonis v. Tilton, 93 Wn. App. 304, 307, 968 P.2d 908 (1998);In re Estate ofFoster, 139Wash.224,225-26,246 P.290(1926);Womach v. Sandygren, 107Wash.80,81-82, 180 P.922(1919). Here,the CC&Rs govern maintenance ofthe common property,and they do not authorize self-help.
8

### No.73369-9-1/9
The heart ofthis dispute is whether the tennis court must be maintained in perpetuity.3 Three of the original deeds contained a covenant 4 pertaining to the
common property: AND SUBJECT TO: the assumption of and the agreement by Grantees to do the following: A. Grantees agree to pay one-fourth (1/4) of the cost of developing and maintaining the common area described above under Parcel B asfollows: 1. All landscaping in the common area;and 2. The construction of a tennis court to commence not sooner than January 1, 1970, and not later than January 1, 1973. Thedate ofcommencementofconstruction to be decided by majority vote ofthe owners ofthefour parcels ofland served by said common area. In event the vote is two for and two against,the results are to be considered a majority for commencementofconstruction. This covenant does not expressly require that a tennis court, once constructed, mustremain on the property perpetually (or until the co-owners amend theirdeeds to remove reference to a tennis court). Nor do we think such a burden is to be inferred. The CC&Rs contemplate that extraordinary maintenance or capital improvements to the common area may become necessary or desirable. They delegate responsibilityfor such decisions and necessary assessmentsto the ACC with no restrictions relative to the tennis court. The removal ofthe tennis court or construction of another recreational facility would qualify as an extraordinary

3 

### The parties did not brief this issue. But, at oral argument,the Dempcys argued that the covenant contained in three of the four deeds requires the coowners to maintain a tennis court on the common property indefinitely, unless all four co-owners agree to the contrary.

4 

### The deed to what is now the Zemel property did notcontain this covenant. 9No.73369-9-1/10

maintenance or capital improvements to the common property. Such decisions
are subject to approval of two votes of the ACC. We hold that the deeds do not require that a tennis court must exist on the common property in perpetuity. We leave to the trial court the question of whether the ACC has exercised its authority to eliminate the tennis court. Whether the tennis court is to be maintained or replaced, all owners are entitled to have the action taken in a reasonable and timely manner,overseen by the trial court if necessary. It would be no more acceptable for the ACC to leave the common property in a state of perpetual construction than to leave it in a state ofperpetual disrepair. We remand to the trial court for further proceedings regarding the ACC's maintenance of the
common property. Immunityfrom Liability under the CC&RS The Dempcys assert that Shannon interfered with their contract to repair thetennis court. They argue thatthe trial courterred in dismissing their suitagainst Shannon for damages. Three members of the ACC convened5 on July 23, 2013 to discuss the future of the common property. During that meeting, the ACC interpreted the CC&Rs as meaning that work done to the tennis court beyond the regular upkeep requiresa special assessmentvoteforapproval. And,all three attending members voted against having a tennis court or any athletic court in the commons.

5 Shannon,Zemel,and Chris Avenius were present. The meeting minutes state that an attempt to call the Dempcys was unsuccessful. 10No. 73369-9-1/11
The Dempcys proceeded to contract with Northshore Paving to repair the tennis court. Shannon learned ofthis contract. He sent Northshore Paving a letter informing the company thatthe ACC had decided notto moveforward with repairs to the tennis court until a long range plan is developed and approved. Shannon signed the letter with his name and,underneath,"Chair, Pickle PointAssociation." Section 3.6 of the CC&Rs provides that members of the ACC cannot be held personally liable for the actions or decisions ofthe ACC. The facts show that Shannon was writing on behalf of the ACC, after a meeting of the ACC during which the ACC voted not to pursue improvements on the tennis court. Therefore,
we conclude thatthe CC&Rs bar the Dempcys'suitfor damages. III. Attorney Fees The CC&Rs provide that the prevailing party in any action brought to enforce the CC&Rs is entitled to attorney fees. Applying this provision, the trial court ordered the Dempcys to pay the Aveniuses'reasonable attorney fees,court costs,and other expenses ofthe litigation relating to the CC&Rs. Attorney fees are not recoverable for the partition issue, on which the Dempcys have prevailed. See Hamilton v. Huggins, 70 Wn. App. 842, 851-52, 855 P.2d 1216 (1993). Nor are fees available to either side for the tortious interference issue. The Dempcys did not make this claim to enforce the CC&Rs. Instead,they argued that the Aveniuses intentionally interfered with their contract to maintain the tennis court. They contended that this claim pertained to actions taken without the authority ofthe ACC.

11No.73369-9-1/12

The remainder ofthe claims did seek to enforce the CC&Rs. These claims related to the ACC's authority and obligation to maintain the common area. Because we uphold the trial court's declaratory judgment regarding the ACC's authority over maintenance ofthe common area,the Aveniuses are the prevailing party on the claims related to the CC&Rs. Accordingly, we affirm the trial court's award ofattorneyfeesto the Aveniuses. And,we conclude thattheAveniuses are entitled to attorney fees on appeal related to the CC&R claims, subject to compliance with RAP 18.1(d). We reverse the trial court's partition order and remand for proceedings consistentwith this opinion.

WE CONCUR: 

# g44/

12