                                                       v.. i r\\ I-   O'   M*




                                                       2015 AUG 29 hYAQ-Ul




IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ROGER RESSMEYER,
                                                       No. 74057-1-1
                     Respondent,
                                                       DIVISION ONE
              v.
                                                       UNPUBLISHED OPINION
STEVEN MARSHALL and DEANNA
MARSHALL, a.k.a. DEANNA NELSON, a
married couple,
                                                       FILED: August 29, 2016
                     Appellants.

      Appelwick, J. — Ressmeyer sued the Marshalls, his downhill neighbors, for

specific performance of a covenant that requires landscaping to be maintained at

a height no greater than the nearest roof peak/ridge. The Marshalls argued that

because Ressmeyer's house was the closest structure to the vegetation, their

trees could grow as tall as the roof peak of his house. The trial court granted

summary judgment in favor of Ressmeyer, concluding that the provision pertains

to the nearest roof peak/ridge on the same property as the vegetation. We affirm.
No. 74057-1-1/2




                                       FACTS


       Steven Marshall and his wife, Deanna Marshall, a/k/a Deanna Nelson, (the

Marshalls) own a home on Mercer Island. They bought the lot in 2001, when it

was undeveloped. The Marshalls' house was finished in 2004.

       Roger Ressmeyer owns an adjacent lot that is directly uphill from the

Marshalls' lot. He purchased his home in 1996. The Marshalls' property stands

between Ressmeyer's home and Lake Washington.

       Both the Marshalls' property and Ressmeyer's property are part of the

Mariner Cove subdivision. The developer that subdivided this property, Odegard

Development Corporation, prepared the declaration of covenants, conditions, and

restrictions of Mariner Cove (CC&Rs). The CC&Rs set out rules and regulations

for the lots in Mariner Cove.

       "Article III, Section 2" of the CC&Rs is titled "Maintenance of Landscaping

and Trees." It provides,

       To protect the outlook from each lot, and to maintain the overall
       desirability of the subject properties, all owners are required to
       maintain visible landscaping in a neat and sightly condition. Planted
       trees (not including the natural large trees on the plat), shrubs, and/or
       hedges must be maintained at a height equal to or lower than the
       nearest roof peak/ridge height, unless the owner has secured an
       instrument allowing a deviation from this restriction signed by all
       owners of Mariner Cove lots uphill of the lot/owner seeking deviation.

This provision has caused an ongoing dispute between the Marshalls and

Ressmeyer.

       The Marshalls have created an approximate visual representation of the

properties in the subdivision, which is included below. The estimated elevations
No. 74057-1-1/3




in this figure list the Marshalls' property—6934 96th Avenue SE—as 56.5 feet,1

and the Ressmeyer's property—located at 6930 96th Avenue SE—as 87 feet.




                                                                           120'

                                                            110'




                                                                   W'.'AvhjSS-




       During the construction of their home, the Marshalls planted a row of bushes

and other vegetation one to two feet away from the western property line that they

share with Ressmeyer (the hedge row). The hedge row is closer to Ressmeyer's

house than it is to any structure on the Marshalls' property. The Marshalls intended

the hedge row to provide shade and privacy, and to be aesthetically pleasing.

      As the hedge row grew, Ressmeyer informed the Marshalls that they were

required to trim their vegetation so that it was no taller than the roof peak/ridge of

their residence.    This would require the hedge row to be maintained at

approximately six to seven feet high, as measured from the ground near the



       1The Marshalls also note that if a structure were placed at a 20 foot setback
on their property, it could have been up to 75 feet in elevation.
No. 74057-1-1/4




property line. Initially, the Marshalls complied. Then, in 2011, the relationship

between the Marshalls and Ressmeyer started to break down.           The Marshalls

stopped trimming the hedge row, although they allowed Ressmeyer to do so at his

own expense. In 2013, the Marshalls told Ressmeyer that they would build another

structure on their property that would permit them to grow even taller vegetation,

thereby blocking Ressmeyer's view.

       On August 21, 2014, Ressmeyer filed a complaint against the Marshalls.

He sought a declaratory judgment that the nearest roof peak means the nearest

roof peak of the primary residence on the same lot as the vegetation, an order of

specific performance requiring the Marshalls to trim the hedge row, and an

injunction preventing the Marshalls from building additional structures for the

purpose of creating a higher roof ridge line.

      The Marshalls counterclaimed, seeking a declaratory judgment that they

may allow their vegetation to grow as tall as Ressmeyer's roof peak, an injunction

requiring Ressmeyer to comply with the CC&Rs, and damages for Ressmeyer's

breach of the CC&Rs. Both parties moved for summary judgment

      The trial court heard argument on the motions on June 12, 2015. The court

concluded that the language in Article III, Section 2 of the CC&Rs pertaining to the

nearest roof peak/ridge refers to the nearest roof peak/ridge on the same property

as the vegetation, even if a structure on a different property is closer.2 The court


       2 Ressmeyer argued that the meaning of this language should be
established through reference to extrinsic evidence: the declaration of David
Odegard, who was vice president of Odegard Development Corporation when the
CC&Rs were drafted. However, the trial court did not refer to this declaration in
No. 74057-1-1/5




held that the purpose of this provision is to preserve each lot's view of Lake

Washington, and that interpreting it to permit vegetation to grow as high as the roof

peak of an uphill neighbor would make no common sense. As a result, the trial

court granted Ressmeyer's motion for summary judgment. The Marshalls appeal.

                                   DISCUSSION


       When a party appeals from a summary judgment, this court engages in the

same inquiry as the trial court. Mountain Park Homeowners Ass'n, Inc. v. Tvdinqs,

125 Wn.2d 337, 341, 883 P.2d 1383 (1994). Summary judgment is proper when

the pleadings, affidavits, depositions, and admissions show that no genuine issue

of material fact exists and the moving party is entitled to judgment as a matter of

law. Id.; CR 56(c). Summary judgment should be granted only if, based on all the

evidence, a reasonable person could reach only one conclusion. Folsom v. Burger

King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).

       The interpretation of a restrictive covenant is a question of law. Wilkinson

v. Chiwawa Cmtvs. Ass'n, 180 Wn.2d 241, 249, 327 P.3d 614 (2014). We apply

the principles of contract interpretation. Id When this court interprets restrictive

covenants, the primary objective is to determine the intent of the parties who

established the covenants.    Riss v. Angel, 131 Wn.2d 612, 621, 934 P.2d 669

(1997). The court construes the document in its entirety, and gives language its

ordinary and common meaning. ]d.




determining the meaning of the covenant.          Nor do we consider Odegard's
declaration.
No. 74057-1-1/6




       The Marshalls argue that Article III, Section 2 can be interpreted only as

tying the maximum vegetation height to the roof peak of whatever structure

happens to be nearest. They assert that any other interpretation would require this

court to read words into the CC&Rs.


       Article III, Section 2 begins by stating the purpose of the provision: "To

protect the outlook from each lot, and to maintain the overall desirability of the

subject properties." Webster's defines "outlook" as "a view from a particular place."

Webster's Third New International Dictionary 1602 (2002).             The Marshalls

contend that "outlook" is a place-centric word that is focused on the place from

where a thing is being observed, not the thing itself. Thus, they argue that "outlook"

is the viewpoint, not the view. Alternatively, they contend that even if "outlook"

does mean view, it is not limited to water views and could just as easily mean

landscape views.

       It is common sense that a lakefront property is more desirable when it has

a view of the lake. See Wimberlv v. Caravello, 136 Wn. App. 327, 337, 149 P.3d

402 (2006) (noting that the scenic location and views of a residential community

overlooking Lake Roosevelt are an intrinsic part of the aesthetic and monetary

value of the lots). The value of the outlook is in the view. The CC&Rs call for

landscaping to be maintained to protect the overall desirability of all the properties

in the subdivision. It would be inconsistent with this provision to permit landscaping

to grow so tall that it completely blocks the view from the uphill neighbor's outlook.

And, if the word "outlook" was intended to mean a view of the landscaping, as the

Marshalls suggest, there would be no need to require landscaping to be
No. 74057-1-1/7




maintained at a particular height, because the landscaping itself would be the

protected view.

      Article III, Section 2 requires owners "to maintain visible landscaping in a

neat and sightly condition." The Marshalls argue that this requirement further

supports their interpretation. They argue that their obligation is to maintain "neat

and sightly" landscaping, not to protect Ressmeyer's outlook. "Neat and sightly"

landscaping, they argue, means landscaping that is aesthetically pleasing and that

provides privacy.3 They are correct about the affirmative obligation for maintaining

visible landscaping. However, the language does not purport to relieve any other

obligation in the covenants, including protection of outlooks. And, nothing in the

landscaping portion of the covenant makes any reference to protecting the privacy

of any owner.

       Article III, Section 2 also contains an exception to the requirement that

vegetation be maintained at a height no greater than the nearest roof peak/ridge,

stating that deviation is allowed if the owner obtains an instrument signed by the

owners of all uphill lots. An owner would need a deviation only to grow vegetation

that is taller than the nearest roof peak. There would be no need to require the

closest uphill neighbor's consent to deviate from the landscaping restrictions if the

nearest roof peak could refer to that neighbor's roof peak. Even though only

       3 The Marshalls view the hedge row as critical to maintaining their privacy.
They wish to grow trees that are tall enough to block Ressmeyer from seeing into
their yard and back windows. Webster's offers multiple definitions of "neat," but
none of them mentions privacy. Webster's Third New International Dictionary
1510 (2002). The only definition relevant in this context is "orderly, tidy." \± And,
Webster's provides several definitions of "sightly:" "acceptable or pleasing to the
sight: decent in appearance;" "affording a fine view." Id\ at 2115.
No. 74057-1-1/8




neighbors located further uphill would be affected by the taller vegetation, because

the vegetation would already block the view of the immediate uphill neighbor,

Article III, Section 2 explicitly requires the deviation to be evidenced by a written

instrument signed by all uphill neighbors.

       The Marshalls' interpretation of the nearest roof peak/ridge language

cannot be squared with the rest of Article III, Section 2.           The Marshalls'

interpretation would give downhill neighbors the right to completely obstruct the

view of their uphill neighbors. Conversely, ifthe downhill neighbor's roof peak was

closer to the planting area than the owner's roof peak, it could prevent uphill

neighbors from having plants at all. It also would all but eliminate the need for the

provision allowing a deviation from the height restriction.

       This court does not give contracts a strained or forced construction that

would lead to absurd results.4 Mid-Century Ins. Co. v. Henault, 128 Wn.2d 207,

213, 905 P.2d 379 (1995). The only reasonable interpretation of the nearest roof

peak/ridge language in Article III, Section 2 is that it refers to the nearest roof

peak/ridge on the same property as the vegetation.




       4 At oral argument, the Marshalls recognized that their interpretation
arguably leads to an absurd result. However, they argued that Ressmeyer's
interpretation leads to an equally absurd result, because it would limit the
Marshalls' vegetation to three to four feet in height. We do not agree that
Ressmeyer's interpretation creates an absurd result. Common sense dictates that
a provision pertaining to the maintenance of landscaping and vegetation would set
limits for vegetation. That the Marshalls are unsatisfied by the aesthetics of
vegetation three to four feet in height does not make this covenant absurd.
No. 74057-1-1/9




      We hold that the trial court did not err in granting summary judgment in favor

of Ressmeyer.

      We affirm.




WE CONCUR:




                                               JjLgL&K. f
