      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



PAUL M. DWIGHT and DONNA J.                           No. 73832-1-
DETAMORE, husband and wife; and
JOHN W. ZIMMERMAN and TRACY C.                        DIVISION ONE
ZIMMERMAN, husband and wife,

                     Respondents/
                                                                                   en   o       -^
                     Cross Appellants,                                             no
                                                                                            n




TANYA J. KEPPLER-KNAUS, a single                       UNPUBLISHED                 —    32
woman; and RICHARD C. KEPPLER
and SUSAN G. KEPPLER, husband and                      FILED: August 29, 2016
wife,

                     Appellants/
                     Cross Respondents.



       Cox, J. — Courts give restrictive covenants their intended purpose and

emphasize protecting the homeowners' collective interest.1 The restrictive

covenant at issue in this case restrict "hedges" and "fences" to a height of six

feet. Because the trees on the property at issue here violate this restrictive

covenant, we affirm the grant of summary judgment. We also hold that the trial

court did not abuse its discretion in determining the scope of the appropriate

remedy.



      1 Wilkinson v. Chiwawa Communities Ass'n, 180 Wn.2d 241, 250, 327
P.3d 614 (2014).
No. 73832-1-1/2



       The parties in this case own property in a neighborhood on Whidbey

Island. The neighborhood is built on a slope, which provides views of the Puget

Sound and Olympic mountains. Tanya Keppler-Knaus, Richard Keppler, and

Susan Keppler (collectively "the Kepplers") own a house that is downhill from the

houses owned by John Zimmerman, Tracy Zimmerman, Paul Dwight, and Donna

Detamore (collectively "the Zimmermans"). Trees on the Kepplers' property

block the views of their uphill neighbors.

       The Zimmermans brought this action to enforce a restrictive covenant

governing the properties. They alleged that the Kepplers' property contains a

group of trees that constitute a "hedge" or "fence" in violation of the restrictive

covenant.


       The Kepplers answered by denying that their trees violated the terms of

the restrictive covenant. They also alleged that the restrictive covenant had been

abandoned.


       Both parties moved for summary judgment and stipulated that no genuine

issues of material fact existed. The trial court granted summary judgment in

favor of the Zimmermans, concluding that the trees were a hedge and that the

covenant had not been abandoned. The trial court ordered the Kepplers to cut

certain trees on their property to a height of 6 feet or less.

       The Kepplers appeal. The Zimmermans cross appeal the scope of the

trial court's remedy.
No. 73832-1-1/3


                          RESTRICTIVE COVENANTS

      The Kepplers argue that the trial court erred by denying their motion for

summary judgment and granting summary judgment in favor of the Zimmermans.

We disagree.

      Courts may grant summary judgment if there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.2

When ruling on summary judgment, the trial court considers the evidence in the

light most favorable to the nonmoving party.3 We review de novo summary

judgment, applying the same standards as the trial court.4

       Interpretation of a restrictive covenant is a question of law.5 Courts

interpret restrictive covenants underthe rules of contract interpretation.6
Washington courts once strictly construed covenants to favor the free use of

land.7 But we no longer apply this rule when the dispute is between homeowners

jointly governed by the covenants.8




       2 Wash. Fed, v. Harvey, 182 Wn.2d 335, 340, 340 P.3d 846 (2015)
(quoting Lvbbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000)).

       3 Young v. KevPharm.. Inc.. 112 Wn.2d 216, 226, 770 P.2d 182 (1989).

       4 Wash. Fed., 182 Wn.2d at 339.

       5 Wilkinson, 180 Wn.2d at 249.

       6jd

       7 JdL at 249-50.

       8 Id.
No. 73832-1-1/4


       Instead, we "'ascertain and give effect to those purposes intended by the

covenants.'"9 We emphasize interpreting the covenant to "'protect[] the

homeowners' collective interests.'"10

       Our primary goal is to determine the drafter's intent.11 To do so, "we give

covenant language 'its ordinary and common use' and will not construe a term in

such a way 'so as to defeat its plain and obvious meaning.'"12

       The covenant at issue here states, "No fences or hedges shall be erected

or permitted to grow to a height exceeding 6 feet."13 The covenant does not

define the term "hedge." Thus, we turn to its common meaning.

       The term "hedge" has several definitions. One definition is "a fence or

boundary formed by a row of shrubs or low trees planted close together."14 A

broader definition is "any fence or wall marking a boundary or forming a

barrier."15




       9 \± at 250 (quoting Riss v. Angel, 131 Wn.2d 612, 623, 934 P.2d 669
(1997)).

       10 jd. (internal quotation marks omitted) (quoting Riss, 131 Wn.2d at 623-
24).

       11
            Id.


       12 Id. (first quoting Mains Farm Homeowners Ass'n v. Worthington, 121
Wn.2d 810, 816, 854 P.2d 1072, 1074 (1993); then quoting Riss, 131 Wn.2d at
623).

       13 Clerk's Papers at 502.

       14 Webster's Third New International Dictionary at 1048 (2002).

       15 Id.
No. 73832-1-1/5



       A "boundary" is "[sjomething that indicates a border or limit."16

       We conclude that the Kepplers' trees constitute a "hedge."

       We note that this court has held in a prior case that trees may constitute a

fence.17 And the Kepplers' trees mark a boundary and form a barrier.

       As the trial court in this case noted, the undisputed evidence shows that

the trees are planted along the Kepplers' property lines. Although the trees are

not planted exactly on the property line, "it is apparent that they form boundaries

forming a U-shaped barrier around the back of the [Kepplers'] property. . . . The

trees in question are not scattered all over the [Kepplers'] property in a

haphazard fashion, but rather exist on or close to" their property lines.18 Thus, by

marking the Kepplers' property lines, the trees are a boundary.

       The trees also constitute a visual barrier. The trees' branches intertwine,

forming a barrier that blocks the Zimmermans' views.

       We conclude that the trial court properly determined that the Kepplers'

trees constitute a "hedge" under the terms of the restrictive covenant.

       The surrounding circumstances may also assist in interpreting covenants.

A restrictive covenant may protect views even if the covenant lacks explicit

language to that effect.19 In Bauman v. Turpen, a restrictive covenant limited



        16 American Heritage Dictionary (5th ed. 2016)
https://ahdictionary.com/word/search. html?q=boundary.

      17 Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61 Wn. App. 177,
182, 810 P.2d 27 (1991).

       18 Report of Proceedings (June 19, 2015) at 15-16.

       19 Bauman v. Turpen, 139 Wn. App. 78, 87-90, 160 P.3d 1050 (2007).
No. 73832-1-1/6


houses to one story.20 The Turpens began building a three-level home that was

"considerably larger than the surrounding homes."21 Under the building code,

which did not limit the height of a story, this qualified as a one story house.22

        After a bench trial, the court determined that the drafter's intent was to

preserve the views of uphill homes.23 It also determined that using the building

code's definition of "story" would not effectuate this intent because it would allow

houses tall enough to "entirely" eliminate the view of uphill houses.24

        The Turpens appealed, arguing that the trial court improperly used

extrinsic evidence to determine the meaning of "story."25 This court affirmed the

trial court, holding that the trial court properly used "the 'surrounding

circumstances of the original parties' ... 'to determine the meaning of the

specific words and terms used in the covenants.'"26 The court went on to note

that:


        extrinsic evidence was necessary to define the operative term
        because it "was not defined either with reference to any building
        code or inches and feet measurement." Thus, the trial court
        properly considered evidence of neighborhood topography and


        20 id, at 83.

        21 id, at 91.

        22 Id at 86-87.

        23 id, at 87-88.

        24 id,

        25 id, at 88.

        26 id, at 89 (quoting Hollis v. Garwall, Inc.. 137 Wn.2d 683, 696, 974 P.2d
836 (1999)).
No. 73832-1-1/7


       what limits the grantor placed on his own house to decide what
       "one story" meant to him when he wrote it.[27]

       Similarly, in Wimberly v. Caravello, the trial court properly considered a

neighborhood's topography when interpreting a restrictive covenant.28 The court

determined that "[t]he scenic location and views are an intrinsic part of the

aesthetic and monetary value of the lots."29

       Here, the undisputed evidence shows that the drafter of this covenant

intended to protect the homeowners' views. The covenant also restricts homes

to "one story in height above the highest existing ground level at the proposed

building site."30 Additionally, the covenant exempts certain lots "at the farthest

upslope part of the subdivision" from this height limitation.31 These restrictions,

combined with the neighborhood's topography, demonstrate that the covenant is

intended to protect views.

       Additionally, protecting views is in the homeowners' collective interest.

Real estate listings for all of the parties' properties describe the properties' views.

For example, a listing for the Kepplers' home described it as having "[o]ne of the

most dramatic views on Whidbey Island .... expansive, elevated views of the




       27 id, at 89-90.

       28 136 Wn. App. 327, 337, 149 P.3d 402 (2006).

       29 id,

       30 Clerk's Papers at 502.

       31 id,; Report of Proceedings (June 19, 2015) at 22.
No. 73832-1-1/8


shipping lanes and Olympic Mountains."32 Similarly, a listing for the

Zimmermans' property notes its "spectacular views of the west side of Whidbey

Island [and] views of the shipping lanes and the majestic Olympic Mountains."33

Accordingly, the trial court properly concluded that the views were the "primary

selling point" for the homes in the subdivision.34

       The Kepplers argue that their trees are not a hedge because they are

large and well-spaced trees. They rely on definitions of "hedge" as a group of

closely planted low growing trees. This argument is unpersuasive because these

are not the only dictionary definitions that bear on the question.

       "[A] row of shrubs or low trees planted close together" is a definition of

hedge.35 But as stated earlier, "hedge" also has a broader definition, which

includes the Kepplers' trees. Just as the court in Bauman did, we use the

definition that reflects the drafter's intent and protects the homeowners' collective

interests. Using the Kepplers' definition would defeat the covenant's purpose by

allowing rows of large trees to block views, so long as the trees were not planted

close to each other.


       The Kepplers also argue that the drafter did not intend to protect views.

First, the Kepplers argue that the restriction on hedges is intended to promote

aesthetic uniformity, not to protect views. They rely on the fact that the covenant



       32 Clerk's Papers at 364.

       33 id, at 369.

       34 Report of Proceedings (June 19, 2015) at 17.

       35 Webster's Third New International Dictionary at 1048 (2002).
                                             8
No. 73832-1-1/9


does not exempt certain lots from the hedge height restriction, as it does for the

height of homes. But a provision of a restrictive covenant may have more than

one purpose. The fact that the hedge restriction promotes uniformity does not

mean that it does not also protect views.

       Second, the Kepplers rely on the restrictive covenant of another

subdivision in the same development to argue that the drafter did not intend to

protect views in the Kepplers' subdivision. But the restrictive covenant of another

subdivision is irrelevant. We interpret the restrictive covenant that applies to the

properties in question.

       Third, the Kepplers rely on an unsuccessful attempt to amend their

restrictive covenant to explicitly protect views. In 1983, the members of the

subdivision attempted to amend the restrictive covenant from 1963. But the

homeowners' subsequent interpretation of their restrictive covenant is not

relevant to determining the drafter's intent. Thus, the Kepplers' arguments are

unpersuasive.

                          ABANDONMENT OF COVENANT

       The Kepplers also argue that the restrictive covenant has been

abandoned. We disagree.

       Abandonment is an equitable defense to enforcement of a restrictive

covenant.36 This defense applies if violations by other residents have eroded the




     36 Mountain Park Homeowners Ass'n. Inc. v. Tvdings. 125 Wn.2d 337,
341.883P.2d 1383(1994).
No. 73832-1-1/10


general plan to make enforcing the covenant inequitable.37 "Violations must be

material to the overall purpose of the covenant, and minor violations are

insufficient to find abandonment."38 Evidence of a single violation is insufficient.39

         The trial court did not err when it concluded that the covenant had not

been abandoned. The undisputed evidence shows many instances of voluntary

compliance with, or enforcement of, the hedge restriction.

         The Kepplers do not dispute this evidence. Moreover, they stipulated at

the summary judgment hearing that there were no genuine issues of material fact

for trial.


         Instead, they argue on appeal that the trial court improperly discounted

numerous instances of non-compliance with the hedge restriction. This does not

persuade this court that the trial court erred.

         The Kepplers presented evidence of several violations of the hedge

restriction. But they failed to present evidence that these violations "obstruct

people's views to any significant extent."40 Instead, the undisputed evidence

showed that these violations did not significantly block other homeowner's views.

         Abandonment requires violations "material to the overall purpose of the

covenant."41 Because the violations that the Kepplers relied on did not obstruct



         37 id, at 342.

         38 id,

         39 id,

         40 Report of Proceedings (June 19, 2015) at 28.

         41 Mountain Park Homeowners Ass'n, 125 Wn.2d at 342.

                                              10
No. 73832-1-1/11



views, they were not material to the covenant's purpose. Accordingly, the trial

court properly concluded that the covenant had not been abandoned.

                                      REMEDY


       Both parties argue that the court abused its discretion in determining the

scope of the injunctive remedy. We disagree with both parties.

       "Trial courts have broad discretionary power to fashion injunctive relief to

fit the particular circumstances of the case."42 A trial court abuses its discretion if

its "decision is 'manifestly unreasonable, or exercised on untenable grounds, or

for untenable reasons.'"43 A decision is manifestly unreasonable "if it is outside

the range of acceptable choices, given the facts and the applicable legal

standard."44 A decision is based on untenable grounds "if the factual findings are

unsupported by the record."45 A decision is based on untenable reasons "if it is

based on an incorrect standard or the facts do not meet the requirements of the

correct standard."46

       Here, the trial court ordered the Kepplers to remove the hedge on their

property. To accomplish this, it ordered them to cut 13 trees on their property to



       42 Hoover v. Warner, 189 Wn. App. 509, 528, 358 P.3d 1174 (2015),
review denied, 185 Wn.2d 1004 (2016).

       43 State v. Gentry, 183 Wn.2d 749, 761, 356 P.3d 714 (2015) (internal
quotation marks omitted) (quoting Wilson v. Horslev, 137 Wn.2d 500, 505, 974
P.2d 316 (1999)).

       44 In re Marriage of Littlefield. 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).

       45 id,

       46 Id.


                                              11
No. 73832-1-1/12



a height of 6 feet or less. This remedy reflects the provisions of the governing

restrictive covenant.


       The Kepplers argue that this remedy is excessive, because the trial court

could have ordered fewer trees removed while still eliminating the hedge. The

Kepplers support this argument by citing to The Town of Clyde Hill v. Roisen.

where the trial court ordered the homeowner to remove 6 of 13 trees to remove a

naturally grown fence.47 In contrast, in the present case, the court ordered the

Kepplers to remove 13 of the 18 trees along their property lines, including all of

the largest trees.

       Trial courts have broad discretion in shaping the scope of injunctive relief.

The fact that another trial court in a different case exercised its discretion

differently does not establish that the court here abused its discretion. The

Kepplers fail to establish that the trial court's decision was manifestly

unreasonable or based on untenable grounds or reasons.

                                    Cross Appeal

       The Zimmermans cross appeal the scope of the injunction, arguing that

the trial court abused its discretion when it did not order the Kepplers to trim

branches from trees on neighboring properties that overhang onto the Kepplers'

property. We disagree.

       In their motion for summary judgment, the Zimmermans failed to support

this request for relief with any legal authority. Similarly, the Zimmermans failed to

provide any authority in their opening brief to support the proposition that the


       47 111 Wn.2d 912, 915, 767 P.2d 1375 (1989).


                                              12
No. 73832-1-1/13


Kepplers should be required to trim branches that overhang onto their property.

And in their reply brief, the Zimmermans' only authority for this proposition is a

citation to one of their declarations stating that "'[i]t is commonly understood that

responsibility for maintaining trees rests with the property owner who has

branches above their property, regardless of where the trunk of the tree is

planted.'"48 This "common understanding" is not legal authority. Accordingly, the

court did not abuse its discretion when it denied this requested relief.

                                 ATTORNEY FEES

       The Zimmermans seek attorney fees on appeal. Specifically, they seek

attorney fees as sanctions for filing a frivolous appeal and failing to comply with

court rules. Because there is no proper basis to award attorney fees, we reject

this argument.

       Parties in Washington may recover attorney fees if a statute, contract, or

recognized ground of equity authorizes the award.49 Under RAP 18.9(a), "[a]n

appellate court may order a party to pay compensatory damages or terms for

filing a frivolous appeal."50 "An appeal is frivolous if, considering the entire

record, the court is convinced that the appeal presents no debatable issues upon

which reasonable minds might differ and that it is so devoid of merit that there is




       48 Reply Brief of Cross-Appellants at 2-3 (quoting Clerk's Papers at 173).

      49 LK Operating. LLC v. Collection Grp., LLC. 181 Wn.2d 117, 123, 330
P.3d 190(2014).

       50 Lutz Tile. Inc. v. Krech. 136 Wn. App. 899, 906, 151 P.3d 219 (2007).


                                              13
No. 73832-1-1/14


no possibility of reversal."51 We resolve doubts whether an appeal is frivolous in

the appellant's favor.52

         Under GR 14.1, "A party may not cite as an authority an unpublished

opinion of the Court of Appeals."

         This appeal was not frivolous. Although the Zimmermans prevailed, for

the reasons discussed earlier, the issues in this appeal were debatable and had

merit.

         Not every violation of GR 14.1 warrants the imposition of sanctions. In a

footnote, the Kepplers cited an unpublished decision from this court, but explicitly

acknowledged that it is not authority and purported to cite it as "merely a factual

example." The Zimmermans fail to show either they or this court have been

prejudiced by this violation of GR 14.1. Accordingly, we decline to award the

Zimmermans attorney fees as sanctions.

         We affirm the trial court's grant of summary judgment to the Zimmermans

and its order granting injunctive relief. We deny the request for an award of

attorney fees on appeal to the Zimmermans.
                                                         ^XCF.

WE CONCUR:




   Tn<M*y/ fioj
         51 id,

         52 Id.


                                             14
