Hagemann v. Worth, 9546-1-III

• Decision Date: 28 November 1989
• Docket Number: No. 9546-1-III,9546-1-III
• Citation: 56 Wn.App. 85,782 P.2d 1072
• Parties: W.E. HAGEMANN and Sharon A. Hagemann, husband and wife; Lyle R. Pein and Mildred Pein, husband and wife; Donald R. Reynolds and Barbara A. Reynolds, husband and wife; Bruce A. Roberts and Joan D. Roberts, husband and wife; James R. Baker, a single man; Ernest W. Rowley, a single man; Susan Gissel, a single woman; and Evelyn L. Stennes, a married woman, in her sole and separate right, Respondents, v. Uriah WORTH and Lola Mae Worth, husband and wife; and Inter West Savings Bank, a Washington banking corporation, Appellants.
• Court: Washington Court of Appeals

Page 85

56 Wn.App. 85

782 P.2d 1072

W.E. HAGEMANN and Sharon A. Hagemann, husband and wife Lyle R. Pein and Mildred Pein, husband and wife; Donald R Reynolds and Barbara A. Reynolds, husband and wife; Bruce A. Roberts and Joan D. Roberts, husband and wife; James R Baker, a single man; Ernest W. Rowley, a single man; Susan Gissel, a single woman; and Evelyn L. Stennes, a married woman, in her sole and separate right, Respondents, v. Uriah WORTH and Lola Mae Worth, husband and wife; and Inter West Savings Bank, a Washington banking corporation, Appellants.

No. 9546-1-III.

Court of Appeals of Washington Division 3, Panel Two.

Nov. 28, 1989.

James R. Doran, Twisp, for appellants.

John L. Reeder, Twisp, for respondents.

MUNSON, Judge.

In July 1986, eight of the property owners (hereinafter Hagemanns) at the Alta Lake Golf Course brought this action to enjoin Uriah and Lola Worth from providing care to the elderly in their home, alleging violation of a covenant restricting business within the plat. ¹ The court found the Worths' use of their home constituted a business, was in violation of the covenant, and therefore issued Hagemanns a permanent injunction against the business use.

The Worths appeal contending the court erred in granting the injunction or, alternatively, the injunction should extend only to the use of their home as a boarding home but not as a foster home. We affirm.

In April 1974, Vaughn and Marlene Wolfe platted an area of land in Okanogan County, known as the Alta Lake Golf Course, into 39 lots plus a golf course. The declaration stated the plat was designed to be an area for "residential and recreational use". The restrictive covenants contained in the declaration were intended to "preserve and enhance the values and amenities of the area." The declaration restricted buildings to "single-family residences" and prohibited "business, industry or commercial enterprise of any kind or nature ..."

In the fall of 1982, the Worths purchased the most southerly Alta Lake lot for the purpose of erecting a family home. Thereafter they decided to build a home which could also be used as a residence for the elderly. The octagon house plans included a loft, five bedrooms, and three bathrooms on the main floor and six bedrooms, three bathrooms, a dining room/kitchen and family room on the lower story. The Worths moved into their home in 1984. In April 1985, Mrs. Worth, an L.P.N., quit her job to care for the first of the Worths' elderly residents. Each resident paid the Worths between $900 and $1,250 per month for room, board and personal care, depending on the level of care required. No state funding was received for this care. The same year, the Worths applied for and obtained an adult family home care license from the State of Washington. As the number of residents increased, the Worths applied for a boarding home license. ² In order to keep the elderly in their home, the Worths spent $25,000 remodeling it to meet the state's fire protection standards.

First, the Worths contend a prerequisite for an injunction to issue is a finding that the Hagemanns suffered substantial injury. There being no such finding and no evidence to support such a finding, the court erred. We disagree.

To establish the right to a temporary or permanent injunction, the party seeking relief must show

(1) that he has a clear legal or equitable right, (2) that he has a well-grounded fear of immediate invasion of that right, and (3) that the acts complained of are either resulting in or will result in actual and substantial injury to him.

Washington Fed'n of State Employees, Coun. 28, AFL-CIO v. State, 99 Wash.2d 878, 888, 665 P.2d 1337 (1983) (quoting Port of Seattle v. International Longshoremen's & Warehousemen's Union, 52 Wash.2d 317, 319, 324 P.2d 1099 (1958)). Because injunctions are addressed to the equitable power of the court, the court must balance these criteria "in light of equity including balancing the relative interests of the parties and, if appropriate, the interests of the public." Tyler Pipe Indus., Inc. v. Department of Rev., 96 Wash.2d 785, 792, 638 P.2d 1213 (1982). All three criteria must be satisfied; generally, the failure to establish any one or more of the criteria dictates denial of the requested relief. Federal Way Family Physicians, Inc. v. Tacoma Stands Up for Life, 106 Wash.2d 261, 265, 721 P.2d 946 (1986).

In Washington, owners of land have an equitable right to enforce covenants by means of a general building scheme designed to make it more attractive for residential purposes, without showing substantial damage from the violation. Mt. Baker Park Club, Inc. v. Colcock, 45 Wash.2d 467, 471, 275 P.2d 733 (1954); Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458, 472, 194 P. 536 (1920) (cited with approval in Reading v. Keller, 67 Wash.2d 86, 89-90, 406 P.2d 634 (1965)). See 20 Am.Jur.2d Covenants, Conditions, Etc. § 314, at 879 (1965). Accord Wier v. Isenberg, 95 Ill.App.3d 839, 51 Ill.Dec. 376, 379, 420 N.E.2d 790, 793 (1981); Crimmins v. Simonds, 636 P.2d 478, 480 (Utah 1981). The primary objective in construing a restrictive covenant is to determine the intent of the parties to the agreement. Burton v. Douglas Cy., 65 Wash.2d 619, 621-22, 399 P.2d 68 (1965); Sandy Point Imp. Co. v. Huber, 26 Wash.App. 317, 320, 613 P.2d 160 (1980).

The plat for the Alta Lake Golf Course states the area was designed to be residential and recreational in nature and the purpose of the protective covenants was to preserve and enhance its value and amenities. One of the property owners testified this action was brought to prevent other businesses from being established within the plat. The enforcement of this covenant does nothing more than preserve to the homeowners the residential character of the neighborhood. See Seaton v. Clifford, 24 Cal.App.3d 46, 100 Cal.Rptr. 779, 782 (1972); Barrett v. Lipscomb, 194 Cal.App.3d 1524, 240 Cal.Rptr. 336, 342 (1987); Crimmins v. Simonds, supra at 480. The Worths' business of caring for the elderly is not objectionable in itself, but to permit their business in contravention of the covenant would open the door to other businesses. By so doing, the residential character of the neighborhood could change. No finding of substantial damage to the Hagemanns is required in this case. We find no error.

Nevertheless, the Worths contend the covenant should not be enforced when other covenants in the plat have been disregarded by the homeowners of Alta Lake. It is correct that when a covenant, which applies to an entire tract, has been habitually and substantially violated so as to create an impression that it has been abandoned, equity will not enforce the covenant. White v. Wilhelm, 34 Wash.App. 763, 769, 665 P.2d 407, review denied, 100 Wash.2d 1025 (1983); Reading v. Keller, supra 67 Wash.2d at 90, 406 P.2d 634 (citing Mt. Baker Park Club, Inc. v. Colcock, supra 45 Wash.2d at 471, 275 P.2d 733).

The court found here:

There is no evidence before the Court that any of the plaintiffs waived compliance with the provisions of the Declaration as to these defendants, nor as to any other persons or activities within the purview of the Declaration.

(Finding of fact 11.) The Worths failed to assign error to this finding and thus it is a verity on appeal. Persing, Dyckman & Toynbee, Inc. v. George Scofield Co., 25 Wash.App. 580, 582, 612 P.2d 2, review denied, 93 Wash.2d 1029 (1980). Moreover, the evidence of prior violations pointed to by the Worths does not reflect "habitual or substantial" violations. There is no error.

Next, the Worths contend the court erred in ruling both foster and boarding home care constitute a business. They argue they are agents for the state in providing services to the elderly; the amount received on a "private pay" basis roughly approximates what they would receive from the state for residents who qualify for state assistance. ³ Additionally, they point to the business and occupation tax statutes which define a business as "all activities engaged in with the object of gain ..." and which exempts the adult family home from taxation. RCW 82.04.140, 82.04.327.

In construing the meaning of a covenant, clear and unambiguous language will be given its manifest meaning; restrictions in derogation of the free use of land will not be extended to include any use not clearly expressed; doubts will be resolved in favor of the free use of land; and the instrument containing the restriction will be considered in its entirety with any attendant circumstances taken into consideration when the meaning is doubtful. Burton v. Douglas Cy., supra 65 Wash.2d at 622, 399 P.2d 68; Lenhoff v. Birch Bay Real Estate, Inc., 22 Wash.App. 70, 73, 587 P.2d 1087 (1978). Burton found the word "business" in a restrictive covenant ambiguous and adopted the definition found in Easterbrook v. Hebrew Ladies' Orphan Soc'y, 85 Conn. 289, 299, 82 A. 561 (1912): " '... The word "business" in its ordinary and common use among men, is employed to designate human efforts which have for their end living or reward. It is not commonly used as descriptive of charitable, religious, educational, or social agencies....' " Burton, 65 Wash.2d at 623, 399 P.2d 68.

The evidence in this case reflects the Worths' living is primarily derived from the income received from their group home, they have employees other than family members and have depreciated their home on their federal income tax return as a business deduction. While the Worths' purpose in providing room, board, and services may be charitable in nature, as reflecting their loving and compassionate concern for the elderly, they are nevertheless making a living providing this service. The fact their home is licensed and is not subject to the state business and occupation tax is incidental to their underlying purpose of making a living. We conclude their activity in providing foster or boarding house care constitutes a...