Heath v. Uraga
| Decision Date | 20 April 2001 |
| Docket Number | No. 25440-9-II.,25440-9-II. |
| Citation | 24 P.3d 413,106 Wash.App. 506 |
| Court | Washington Court of Appeals |
| Parties | Robert P. HEATH, Respondent, v. Nick URAGA, M.D., and Lesley Uraga, husband and wife, Appellants. |
Garold Edwin Johnson, Mann Johnson Wooster & McLaughlin Ps, Tacoma, for Appellants.
Barton Louis Adams, Adams & Adams, Tacoma, for Respondent.
James R. Tomlinson, Davies Pearson Pc, Tacoma, for Respondent/Intervenors.
Nick and Lesley Uraga (Uraga)1 appeal from a partial summary judgment order to raze the home they built in violation of subdivision covenants. We affirm.
The parties own separate lots in Miller's Panorama Park Second Addition, a West Tacoma subdivision with western views of the Narrows. The subdivision developers recorded restrictive covenants in the 1960's. Paragraph five of the covenants (1) established a committee comprising three named members to review building plans for any lot in the subdivision (the Committee); and (2) provided that if a Committee member dies or resigns, the remaining members, or member shall have authority to "approve or disapprove [structural] design and location or to designate a representative with like authority." (Emphasis added.) The covenants further provided that after 10 homes had been built, the resident owners were to meet and elect their own building-review Committee members.
In accordance with this provision, in 1987, the subdivision resident owners elected a new three-member Committee consisting of Pete Lisicich, John Mahan, and John Case. Case resigned in 1991, and Mahan resigned in 1992, leaving Lisicich as the sole member. Lisicich rejected one set of plans that Uraga submitted because the wall height was too high, the roof pitch was too steep, and the plans were too vague.
Lisicich was planning to move, so after his first designee declined, he designated Robert Heath as "representative" of the Committee. Lisicich then resigned.
Nick Uraga again proposed building a home on a lot. At Lisicich's direction, in late May 1997, Uraga presented Heath with building plans for a house.2 Heath owned the lot uphill from Uraga and wanted at least one other person to work with him in his review of Uraga's plans. After three people declined, Mike O'Halloran and Bob Murray, whose previous acquaintance with Heath was limited, agreed to review Uraga's plans with Heath.
Heath noticed that Uraga's plans specified a roof pitch of 3/12,3 whereas the covenants allowed a pitch no greater than 2/12.4 Heath asked Uraga to erect a "story pole" to ascertain the finished height of the roof peak. Uraga replied, "I don't have to because it's not covered in the covenants." Heath later made a second request to Uraga's builder, Greg Hoover, to erect a story pole, but that request was also rejected.
Heath, O'Halloran, and Murray each independently reviewed Uraga's plans. The plans Uraga provided did not indicate the anticipated grading level of the property or the starting elevation for the foundation. Nor did the plans provide enough information to determine the final roof peak elevation. Heath scaled the plans to ascertain the height from foundation to roof, made his own story pole, and conducted tests to determine the degree of view impairment the proposed house could cause.
All three men independently concluded that the proposed roof would be too high, the pitch too steep, and the plans noncompliant with the covenants. On June 14, 1997, Heath sent Uraga a letter declining approval of his plans because his building proposal did not comply with the covenants.
Uraga decided that Heath, Murray, and O'Halloran were not officially Committee members and that they lacked authority to act on his plans. Uraga and his wife gathered signatures on a "Petition for Exemption" from more than 50 percent of the homeowners in the subdivision.5
Uraga then had the building plans redrawn for a home that was substantially taller than the one depicted in the plans he had submitted to Heath for review and substantially different from the plans for which he had gathered signatures in his Petition for Exemption. Uraga never submitted these new designs to Heath for review. With no prior Committee approval, Uraga began constructing this newly designed home in April 1998.
Report of Proceedings, March 10, 1999, at 8.
The trial court granted Heath partial summary judgment and found that Heath, Murray, and O'Halloran constituted a valid Committee, formed in accordance with all procedural covenant requirements. The court limited the issue for trial to whether the Committee acted reasonably in rejecting Uraga's proposal.7 Uraga continued to build his home, which he had almost completed by the time of trial in June 1999.
At trial, the court found that: (1) the Committee acted reasonably; and (2) Uraga's house violated the subdivision covenants for height,8 substantial impairment of other owners' views, and excessive roof pitch. The court encouraged the parties to negotiate a lowering of the house to meet acceptable height limits, but Uraga refused.
Following Uraga's refusal to negotiate lowering the height, the trial court ordered the house torn down to the foundation. Uraga appealed.
We review orders of summary judgment de novo. Enterprise Leasing Inc. v. City of Tacoma, 139 Wash.2d 546, 551-52, 988 P.2d 961 (1999). When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).
Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). The court must consider all facts and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437,656 P.2d 1030.
After the moving party submits adequate affidavits, the nonmoving party must set out specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits accepted at face value. Seven Gables Corp., 106 Wash.2d at 13, 721 P.2d 1. The court should grant the motion only if, from all the evidence, reasonable minds could reach but one conclusion. Wilson, 98 Wash.2d at 437.
Heath's authority to consider and to reject Uraga's building plans emanates from the covenants, which provide in pertinent part:
No buildings shall be erected ... on any building plot in the sub-division until the building plans, specifications, and plot plan showing the location of such building have been approved in writing ... by a committee... or by a representative designated by a majority of the members of said committee. In the event of death or resignation of any member to said committee, the remaining member, or members, shall have full authority to approve or disapprove such design and location or to designate a representative with like authority.
Clerk's Papers at 33 (emphasis added).
Lisicich, as the sole remaining member of the duly elected Committee, was acting under authority of this covenant when he designated Heath "a representative." As a representative, Heath had "like authority" as a Committee member and, thus, was the functional equivalent of a Committee member. Because there were no other remaining "members," Heath alone had "full authority to approve or disapprove" the design and location of Uraga's proposed building.
Uraga argues that Heath lacked authority because he was merely the "agent" of the Committee and that the agency relationship terminated when Lisicich resigned from the Committee. We disagree. Heath was clearly functioning, not as Lisicich's agent,9 but as a Committee representative, designated according to covenant procedures. The covenants grant a designated representative the same authority to review building plans as the Committee would exercise.10
The covenants allow a Committee member to appoint a representative to review proposed building plans with the same authority as a Committee member. This authority is not limited or terminated upon the appointing Committee member's death or resignation. Accordingly, Heath had authority under the covenants to review Uraga's plans.
The trial court found that "pursuant to the terms of the covenants ... Heath was authorized to appoint two additional members of the architectural control committee." But as Uraga correctly notes, the covenants do not provide for a mere representative, as compared to a Committee member, to appoint new members to the Committee. Rather, as Uraga states, "The only authority delegated to a...
To continue reading
Request your trial
- Beyond Systems, Inc. v. Keynetics, Inc., No. CIV. PJM 04-686.
- Marycle v. First Choice
-
Green v. Normandy Park
...the board.17 ¶ 50 The question of "who may decide" is one pertaining to the authority of the decision maker. See Heath v. Uraga, 106 Wash. App. 506, 514, 24 P.3d 413 (2001). Only a properly nominated person may exercise authority granted the decision maker by the covenants. Heath, 106 Wash.......
-
Micro Enhancement v. Coopers & Lybrand, LLP
...Ridge, 105 Wash.2d at 780, 719 P.2d 531 (lack of proof on any one element defeats a consumer protection action); Heath v. Uraga, 106 Wash.App. 506, 515, 24 P.3d 413 (2001) (appellate court may affirm entry of summary judgment on grounds other than those relied upon by trial court). Moreover......