White v. Wilhelm
| Decision Date | 25 May 1983 |
| Docket Number | No. 9724-5-I,9724-5-I |
| Parties | Deanna WHITE and Robert B. Dixon and Marlyce Dixon, his wife, Appellants, v. Glen WILHELM and Carol Wilhelm, his wife, Respondents. |
| Court | Washington Court of Appeals |
Francis, Lopez & Ackerman, Peter Francis, Seattle, for appellants.
Bogle & Gates, Helen Harvey, Seattle, for respondents.
Deanna White and the marital community of Robert and Marlyce Dixon, appeal a judgment denying them injunctive relief and/or damages for the alleged violation of certain residential restrictive covenants by the marital community of Glen and Carol Wilhelm. The Wilhelms cross appeal the judgment of the trial court denying them attorney's fees for damages in defense of this action. Three issues are presented:
(1) Whether substantial evidence supports the trial court's finding that the purpose of the restrictive covenants was to obtain FHA financing;
(2) Whether the construction of a swimming pool enclosure by the Wilhelms is in violation of the Malabar Hill covenants, thereby requiring a permanent injunction of the construction;
(3) Whether the Wilhelms should be granted attorney's fees for damages incurred as a result of their defense of this action.
The parties to the instant action, Deanna White, Robert B. Dixon, Marlyce Dixon, Glen Wilhelm, and Carol Wilhelm all reside adjacent to each other in a subdivision in King County known as Malabar Hill Division No. 1. In 1962, Don Jacobs and Robert Yelland, the developers of the subdivision, filed an instrument containing residential area covenants (Malabar Hill covenants) when subdividing the property for residential construction. There is no dispute that the parties are subject to these covenants.
The Malabar Hill covenants generally restrict land use, building type, architectural style, cost, quality, size, location, and access to homes built within the subdivision. They further provide that building plans, specifications, architectural style, and other specified items must be approved by the Architectural Control Committee (Committee) prior to construction. The Committee was originally comprised of Don Jacobs and Robert Yelland, the developers, and Allen Hill, a consulting engineer, but has not functioned for the past several years.
This dispute arose in August of 1980 when the Wilhelms began construction of an enclosure for their swimming pool so that it could be used year-round. The Wilhelms had installed and completed the pool in February of 1980 in response to a doctor's recommendation that Carol Wilhelm swim on a regular basis as treatment for her rheumatoid arthritis. The pool is located immediately adjacent to the Wilhelms' house, and there is no contention that the swimming pool, by itself, is in violation of the restrictive covenants.
However, when construction of the pool enclosure continued over the objection of White and the Dixons, they filed this lawsuit seeking an injunction and/or damages. On September 25, 1980, the Wilhelms were served with a temporary restraining order and order to show cause enjoining them from further construction of the pool enclosure. They immediately ceased construction of the pool enclosure. At the time of trial, the Wilhelms had spent approximately $14,000 for the cost of the enclosure and expected to spend another $8,500-$9,000 to complete the addition.
Following trial, the trial court entered judgment denying White and the Dixons' request for injunctive relief, damages, and attorney's fees and dismissed the action. The trial court further denied the Wilhelms' counterclaim for attorney's fees as damages for defending the action.
The first issue is whether substantial evidence supports the finding that the purpose of the restrictive covenants was to obtain financing.
Initially, White and the Dixons challenge the trial court's finding of fact that:
The restrictive covenants on Malabar Hill Division No. 1 (Exhibit 1) were drawn up in the early 1960's for the purpose of qualifying homes within the development for FHA financing.
The finding is supported by substantial evidence and will not be disturbed on appeal. Seattle-First Nat'l Bank v. Brommers, 89 Wash.2d 190, 199, 570 P.2d 1035 (1977); Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959).
In any event, the finding was not material to the decision of the trial court and its entry not grounds for reversal. See State v. Craig, 82 Wash.2d 777, 784, 514 P.2d 151 (1973); W.L. Reid Co. v. M-B Contracting Co., 46 Wash.2d 784, 791, 285 P.2d 121 (1955); James S. Black & Co. v. P & R Co., 12 Wash.App. 533, 537, 530 P.2d 722 (1975); Stuart v. Consolidated Foods Corp., 6 Wash.App. 841, 845 496 P.2d 527 (1972).
The second issue is whether the construction of a swimming pool enclosure by the Wilhelms is in violation of the Malabar Hill covenants, thereby requiring a permanent injunction of such construction.
Burton v. Douglas Cy., 65 Wash.2d 619, 621-22, 399 P.2d 68 (1965), stated the recognized principles for construing restrictive covenants:
(1) The primary objective is to determine the intent of the parties to the agreement, and, in determining intent, clear and unambiguous language will be given its manifest meaning. (2) Restrictions, being in derogation of the common-law right to use land for all lawful purposes, will not be extended by implication to include any use not clearly expressed. Doubts must be resolved in favor of the free use of land. (3) The instrument must be considered in its entirety, and surrounding circumstances are to be taken into consideration when the meaning is doubtful.
(Citations omitted.)
White and the Dixons contend by construction of their swimming pool enclosure that the Wilhelms are in direct violation of three specific provisions of the Malabar Hill covenants, to-wit, sections III.A., III.B., and III.D. We turn to a discussion of these covenants.
First, White and the Dixons contend that the Wilhelms have violated section III.A. of the Malabar Hill covenants, since the construction of the swimming pool enclosure creates a second building separate and distinct from the existing dwelling and is not merely an addition to the Wilhelms' home.
Section III.A. states:
No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than four cars.
The trial court found that "the defendants' enclosed swimming pool is not a separate building but is an addition to their single-family dwelling." The definition of what constitutes a "single-family dwelling" and whether a structure constructed adjacent to such a dwelling is a component thereof or whether it is a separate "building" is to some extent a legal, not a factual issue. Nonetheless, "[f]indings of fact that are actually conclusions of law will be treated as such," and are subject to appellate review. Artz v. O'Bannon, 17 Wash.App. 421, 425, 562 P.2d 674 (1977); see Woodruff v. McClellan, 95 Wash.2d 394, 396, 622 P.2d 1268 (1980).
Generally, a restrictive covenant which limits a lot to "one single-family dwelling" prohibits an owner from building more than one residential structure on the lot and from using that structure to house more than one family. Collins v. Goetsch, 59 Haw. 481, 583 P.2d 353 (1978); see 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 196 (1965). What constitutes a "building" has been traditionally defined "as a structure or edifice enclosing a space within its walls, and usually covered with a roof," Annot., What Constitutes a "Building" Within Restrictive Covenant, 18 A.L.R.3d 850, 852 (1968), but "whether a particular structure is a building in violation of a restriction depends upon the wording of the restriction, strictly construed, under the facts of the particular case." 20 Am.Jur.2d, supra at § 194. However, where an addition to a home is not separate and distinct so that it has the appearance of a separate building, it will not violate a restrictive covenant against building more than one structure on a lot. Tate v. Moran, 264 Pa.Super.Ct. 540, 400 A.2d 217, 220 (1979); see Shapiro v. Levin, 223 Pa.Super.Ct. 535, 302 A.2d 417 (1973).
The record supports the conclusion that the enclosure is an addition to the Wilhelms' home and is not a separate building. The enclosure is to be sided with cedar drop siding similar to the house, with windows, doors, and trim similar to the house. It will be the same color of the house. It is a part of the house and is not separate. The Wilhelms felt the enclosure was an addition to their home and filed the application for the building permit based on that belief. The enclosure is entered through the Wilhelms' recreational room, and the enclosure and recreational room are adjoining rooms like any other room in the house. There is no separation between the house and pool enclosure. Since the swimming pool enclosure was built as a part of the house and not as a separate structure distinct from the Wilhelms' home, its construction is not in violation of section III.A. of the Malabar Hill covenants.
Second, White and the Dixons contend that the Wilhelms violated section III.B. of the Malabar Hill covenants by not getting approval of the swimming pool enclosure by the Committee prior to construction. Section III.B. states in part:
No building shall be erected, placed, or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the Architectural Control Committee as to the quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topography and finish grade elevation. No fence or wall shall be erected, placed or altered on any lot...
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