Bremmeyer Excavating, Inc. v. McKenna, 14382-4-I

• Decision Date: 07 July 1986
• Docket Number: No. 14382-4-I,14382-4-I
• Citation: 721 P.2d 567,44 Wn.App. 267
• Court: Washington Court of Appeals
• Parties: BREMMEYER EXCAVATING, INC., a Washington corporation, Appellant, v. John McKENNA and Jane Doe McKenna, husband and wife, and John Pietromonaco and Jane Doe Pietromonaco, husband and wife, d/b/a Business Parks Northwest, a partnership, Respondents.

Page 267

44 Wn.App. 267

721 P.2d 567

BREMMEYER EXCAVATING, INC., a Washington corporation, Appellant, v. John McKENNA and Jane Doe McKenna, husband and wife, and John Pietromonaco and Jane Doe Pietromonaco husband and wife, d/b/a Business Parks Northwest, a partnership, Respondents.

No. 14382-4-I.

Court of Appeals of Washington Division 1.

July 7, 1986.

Michael D. Hunsinger, Neubauer, Mair, Abercrombie & Hunsinger, Seattle, for Bremmeyer Excavating, Inc.

John Blankinship, Montgomery, Purdue, Blankinship & Austin, Seattle, for John McKenna.

GROSSE, Judge.

This matter is before us on Bremmeyer Excavating, Inc.'s appeal from an order on summary judgment. That order dismissed Bremmeyer Excavating, Inc.'s complaint which alleged that a disputed contract to provide fill material was a covenant running with the land. We agree with the trial court and affirm.

On January 29, 1980, Bremmeyer Excavating, Inc. (Bremmeyer) and Gerald Parks entered into a written agreement whereby Bremmeyer was to provide labor and materials to fill a parcel of property owned by Parks. Paragraph 7 of the agreement provided as follows:

Bremmeyer is hereby given the exclusive right, to be exercised at its option, for a period of five years from the date of this agreement, to perform on the subject property the following: (a) all the hauling onto or from the subject property all fill material of any nature; (b) all the work for the installation of any and all water and sewer utilities on the subject property, including but not limited to digging, trenching, installation, refilling and surcharging. If Bremmeyer exercises its right to perform any of the above-mentioned work, Bremmeyer agrees to meet the lowest competitive price obtained by Parks for such work from a responsible contractor.

Sometime thereafter Parks sold the property to John McKenna and John Pietromonaco. McKenna and Pietromonaco filled the property without Bremmeyer's services. Bremmeyer filed suit against McKenna and Pietromonaco alleging breach of the fill contract and claiming that the contract created a covenant that runs with the land.

Summary judgment is appropriate if the moving party can demonstrate that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. CR 56(c). The motions judge found that there was no evidence that the fill contract was intended to be binding on successors or assigns. Although Bremmeyer assigns error to that finding, this court does not have to decide whether there is a material issue of fact on this point. An appellate court can sustain a trial court's judgment upon other grounds established by the pleadings and supported by the record. Wendle v. Farrow, 102 Wash.2d 380, 686 P.2d 480 (1984).

The requisites for a covenant running with the land are set forth in Leighton v. Leonard, 22 Wash.App. 136, 589 P.2d 279 (1978).

(1) [T]he covenants must have been enforceable between the original parties, such enforceability being a question of contract law except insofar as the covenant must satisfy the statute of frauds; (2) the covenant must "touch and concern" both the land to be benefitted [sic ] and the land to be burdened; (3) the covenanting parties must have intended to bind their successors in interest; (4) there must be vertical privity of estate, i.e., privity between the original parties to the covenant and the present disputants; and (5) there must be horizontal privity of estate, or privity between the original parties.

(Footnotes omitted.) (Citations omitted.) Leighton, at 139, 589 P.2d 279. The contract at issue here fails to satisfy the second and fifth of these prerequisites.

The second requirement, that the covenant "touch and concern", means that the covenant must be so related to the land as to enhance its value and confer a benefit upon it or conversely impose a burden upon it. See Rodruck v. Sand Point Maintenance Comm'n, 48 Wash.2d 565, 295 P.2d 714 (1956). Rodruck further explains this element as follows:

In Seattle v. Fender, 42 Wn.2d 213, 254 P.2d 470, we quoted with approval from Pelser v. Gingold, 214 Minn. 281, 8 N.W.2d 36:

"A covenant is said to run with the land when it touches or concerns the land granted or demised. Generally speaking, a covenant touches or concerns the land if it is such as to benefit the grantor or the lessor, or the grantee or lessee, as the case may be. As the term implies, the covenant must concern the occupation or enjoyment of the land granted or demised and the liability to perform it, and the right to take advantage of it must pass to the assignee. Conversely, if the covenant does not touch or concern the occupation or enjoyment of the land, it is the collateral and personal obligation of the grantor or lessor and does not run with the land."

Rodruck, 48 Wash.2d at 574-75, 295 P.2d 714. Arguably, a contract requiring a landowner to place fill on his property or accept the placement of fill on his property could be said to benefit and/or burden that property. However, this contract does not require or prevent fill. It does not impose a benefit or a burden on the property at all. It imposes a burden on Parks personally and then only with respect to his choice of a...