Bloome v. Haverly

• Decision Date: 11 January 2010
• Docket Number: No. 62974-3-I.,62974-3-I.
• Citation: 154 Wn. App. 129,225 P.3d 330
• Court: Washington Court of Appeals
• Parties: Mark BLOOME, Appellant, v. Jackson L. HAVERLY, Respondent.

225 P.3d 330

154 Wn. App. 129

Mark BLOOME, Appellant, v. Jackson L. HAVERLY, Respondent.

No. 62974-3-I.

Court of Appeals of Washington, Division 1.

January 11, 2010.

Patrick John Schneider, Steven James Gillespie, Foster Pepper PLLC, Seattle, WA, for Appellant.

David Joseph Smith, David Joseph Smith, P.S., Kirkland, WA, for Respondent.

DWYER, A.C.J.

¶ 1 A court may issue a declaratory judgment only where a justiciable controversy exists between adverse parties. Because the record herein does not establish the existence of a mature dispute that may be conclusively resolved by either of the forms of declaratory relief sought by the parties, a justiciable controversy does not exist between them. The grant of declaratory relief as requested by either party would constitute a prohibited advisory opinion. Accordingly, we reverse and remand for further necessary proceedings.

I

¶ 2 Jackson Haverly owns a house and surrounding property located on a steep bluff just south of Discovery Park in Seattle's Magnolia neighborhood. Haverly's property—the "uphill parcel"—is located uphill and immediately across the street from an undeveloped, forested parcel owned by Mark Bloome—the "downhill parcel." From the uphill parcel, one can see Puget Sound to the south and west by looking over the downhill parcel, which runs down the bluff from the street to the shore. Haverly acquired the uphill parcel on June 30, 1995. He purchased it from Bloome and Bloome's then-spouse after having rented the property from them for several years.¹

¶ 3 To facilitate the conveyance of the uphill parcel, the Bloomes executed two restrictive real covenants. One of the covenants— titled the "view covenant"—benefits the estate in the uphill parcel while burdening the estate in the downhill parcel. According to its express terms, the "intent" of the view covenant "is to maintain the existing view corridor for [the uphill parcel] as it exists on June 30, 1995," at the burden of the estate in the downhill parcel. The view covenant arose out of discussions between the parties during sale negotiations. It provides for the removal of certain trees from the downhill parcel and creates a framework for the future removal of other trees on the downhill parcel. The covenant does not expressly address the construction of any building on, or other development of, the downhill parcel.²

¶ 4 The other covenant executed by the Bloomes—titled the "restrictions on development"—benefits the estate in the downhill parcel and burdens the estate in the uphill parcel. This covenant imposes specific restrictions on any future construction on the uphill parcel, including minimum setback and maximum height requirements, square footage restrictions, and aesthetic restrictions on the color and type of material to be used in future construction. It also sets forth procedures for compliance inspections of future construction.

¶ 5 In November 2007, Bloome filed a complaint seeking a declaratory judgment that the view covenant "does not prohibit or limit the construction of a house or other structure on the [downhill parcel]." The complaint's filing followed Haverly's refusal to sign a statement prepared by Bloome's attorney confirming that the view covenant "applies to trees but not to structures." Haverly subsequently brought a counterclaim for a declaratory judgment that the view covenant "precludes any construction on the [downhill parcel] that would be in derogation of the view from the [uphill parcel] ... as that view existed on June 30, 1995."

¶ 6 After conducting discovery, the parties filed cross-motions for summary judgment. In connection with their respective motions, both Bloome and Haverly submitted declarations attesting to the circumstances surrounding the execution of the two real covenants and excerpts from deposition testimony given by each party. According to this evidence, no structure existed on the downhill parcel at the time that the view covenant was executed. Further, it indicates that the parties did not discuss future limitations on the construction of any building on or other development of the downhill parcel.

¶ 7 In his declaration, Haverly attested to his personal beliefs as to what each party intended the covenant to mean.³ He declared that he thought the parties understood his request for a covenant to mean "that nothing would ever be allowed to intrude into" the uphill parcel's view corridor. Haverly further affied that he never saw the specific reference to trees in the covenant "as limiting the view covenant in any way" but rather that he understood the language "only as an identification of those objects that were then intrusions [in]to my view" and as "forever preserv[ing] the view of Puget Sound from the property I was about to purchase." In addition, Haverly stated, "When I asked for a view covenant, I told Mr. Bloome I wanted to preserve the view—not just preserve the view from trees and bushes." Finally, he declared that Bloome "had never expressed to me directly that the covenant only applied to trees and bushes but not buildings." Relying on these statements and testimony in Bloome's deposition as to what Bloome thought the covenant meant, Haverly argued in his trial court briefing that the parties intended for the view covenant to provide comprehensive protection of the view from the uphill parcel and that it therefore restricted development on the downhill parcel.

¶ 8 Bloome subsequently moved to strike as inadmissible these portions of Haverly's declaration and the corresponding sections of Haverly's trial court briefing. Bloome contended that the materials pertained to each party's unilateral, subjective intent as to the meaning of the covenant. In conjunction with his motion to strike, however, Bloome submitted a second declaration of his own, in which he attested to his personal belief about the parties' intent, as opposed to simply what the parties did or did not discuss. Bloome characterized the statements in his second declaration as inadmissible evidence of his subjective intent and urged the trial court to consider neither his declaration nor the objected-to portions of Haverly's declaration.

¶ 9 The trial court granted Haverly's motion for summary judgment. It concluded that the view covenant prohibits the owner of the estate in the downhill parcel "from building a structure ... that interferes with the view from [the uphill parcel] as it existed on June 30, 1995 so that the view of Puget Sound and the Olympic Mountains is the same as it was on the above-described date." In so doing, the trial court denied both Bloome's cross-motion for summary judgment and his motion to strike.

¶ 10 Bloome subsequently moved for reconsideration. In support of this motion, Bloome submitted an additional declaration, in which he averred that any garage for any future house built on the downhill parcel "would have to be built at street level, and cantilevered over [the] parcel ... because the slope is far too steep for cars to travel up and down." He further declared that "[a]ny garage at street level would interfere with ... Haverly's view." In addition, Bloome asserted that the trial court's order effectively prohibited "all development" on the downhill parcel because "any construction on [the downhill parcel] will block the view of a portion of Puget Sound from [the uphill parcel]" due to the steepness of the bluff and the corresponding angle of the view from the uphill parcel. However, Bloome did not submit any architectural plans, engineering studies, or other evidence in support of his assertion that it is impossible to build a habitable building or other structure on the downhill parcel without interfering with the view from the uphill parcel. Indeed, nothing in the record indicates that Bloome either planned or plans to construct a building on the downhill parcel. The only other item Bloome offered in support of his motion for reconsideration was a calculation of the grade and slope angle of the downhill parcel prepared by one of his lawyers who has an engineering and mathematics background.

¶ 11 The trial court denied Bloome's motion for reconsideration. Bloome appeals from all of the trial court's orders.

II

¶ 12 We review de novo a trial court's order granting summary judgment. Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wash.2d 489, 497, 210 P.3d 308 (2009) (citing Biggers v. City of Bainbridge Island, 162 Wash.2d 683, 693, 169 P.3d 14 (2007)). In so doing, we engage in the same analysis as the trial court. Hollis v. Garwall, Inc., 137 Wash.2d 683, 690, 974 P.2d 836 (1999) (citing Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994)). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). "A material fact is one upon which the outcome of the litigation depends in whole or in part." Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990) (citing Morris v. McNicol, 83 Wash.2d 491, 494, 519 P.2d 7 (1974)). "The interpretation of language contained in a restrictive covenant is a question of law," which we review de novo. Green v. Normandy Park Riviera Section Cmty. Club, 137 Wash.App. 665, 681, 151 P.3d 1038 (2007) (citing Parry v. Hewitt, 68 Wash.App. 664, 668, 847 P.2d 483 (1992)), review denied, 163 Wash.2d 1003, 180 P.3d 783 (2008). We also review de novo evidentiary rulings made in conjunction with a summary judgment motion. Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998).

III

¶ 13 Bloome first contends that the trial court should have stricken both the portions of Haverly's declaration concerning the parties' personal beliefs as to the scope and meaning...