                                                                                 ED
                                                                    COURT 01 APPEALS
                                                                         4I1
                                                                         Filvi, 1%
                                                                              5

    IN THE COURT OF APPEALS OF THE STATE                          FWASHT IlG          A
                                                                   STATE OF VVASd1114GT01'
                                        DIVISION II.               BY—
                                                                      0E JTY ___,
DALE E. and LETA L. ANDERSON; DALE                              No. 41201 2 II
                                                                          - -
E. ANDERSON and LETA L. ANDERSON,                              consolidated with
Trustees of the DALE E. ANDERSON AND                            No. 42925 0 II
                                                                          - -
LETA L. ANDERSON FAMILY TRUST; and
RIVER PROPERTY LLC,

                Respondents Cross Appellants,
                            /

       V.




JAMES W. BROWN; ROBERTA D. DAVIS;                         UNPUBLISHED OPINION
KAE HOWARD, Trustees of the KAE
HOWARD TRUST; MICHAEL J. and CRISTI
D. DEFREES, husband and wife; TUAN
TRAN and KATHY HOANG, husband and
wife; THOMAS    J.  and   GLORIA  S.
KINGZETT, husband and wife; LARRY R.
and SUSAN I. MACKIN, husband and wife;
TOD E. MCCLASKEY, JR. and VERONICA
A.   MCCLASKEY,      Trustees   of the
MCCLASKEY FAMILY TRUST FUND A;-
CRAIG STEIN; RICHARD and CAROL
TERRELL, husband and wife,




       PENOYAR, J. — Dale and Leta Anderson seek to divide a lot they purchased in a

Vancouver riverfront subdivision. The other lot owners in the subdivision oppose the division of

this lot, having signed an amendment to the subdivision's restrictive covenants that forbids
further division of any lot.   After the superior court entered a declaratory judgment that the

amendment was invalid and that the existing covenants did not expressly forbid or allow further

divisions of subdivision lots, the Andersons filed a short plat application with the city that

received   preliminary approval.
41201 2 II /42925 0 II
      - -         - -




       The neighbors filed two separate appeals, one challenging the superior court's declaratory

ruling and one challenging the hearing examiner's decision affirming the city's approval of the

Andersons' short plat application. These two appeals have been consolidated here and present

numerous issues.


       We conclude that the amendment to the covenants was valid because, in conformance

with the covenants, it was approved by owners holding more than 80 percent of current

ownership   interest in the lots in the subdivision.   This conclusion renders moot issues the


neighbors raise of exhaustion of administrative remedies and the propriety of the declaratory

judgment proceedings.       We also conclude that the Andersons' equitable claims must be

remanded for further     proceedings. We retain jurisdiction so that, should the Andersons be

successful in these proceedings, we may consider whether the Andersons' application will need

to be processed as a plat alteration or as a short plat. Finally, the Andersons were not entitled to

attorney fees below, nor is either party entitled to attorney fees on appeal, because neither party

is of yet the prevailing party in this dispute. Accordingly, we reverse in part, and remand with

jurisdiction retained.

                                              FACTS


CASE ONE


I.      BACKGROUND


        In 1989, the Rivershore phase 1 subdivision (Rivershore)was created along the banks of

the Columbia River near Vancouver, Washington.' When it was recorded, Rivershore comprised

13 lots and a tract of land called Tract A that, running the length of the subdivision, bordered

each lot on one side and the river on the other. Note 4 on the Rivershore plat stated: Tract ` '
                                                                                       "     A


  The City of Vancouver annexed Rivershore and the surrounding area in January 1997.
                                                 2
41201 2 II /42925 0 II
      - -         - -




to be owned and maintained by owners of record of lots 1 -13;will be conveyed as an undivided

1/3 interest in,and
 1                             A. "' s
                      to tract `   Clerk'    Papers (CP)at 608.

         Rivershore's developer created and recorded a declaration of covenants and restrictions

for Rivershore (Covenants) at the time of Rivershore's creation. The Covenants' introduction


provides for their amendment: "[ ny modification desired may be made by affirmative vote of
                               A]

80% the then owners of lots within this subdivision and evidenced by a suitable instrument
  of

filed for public record."CP at 16.

         The Covenants also detail the rights, responsibilities, and restrictions associated with

Tract A. Mirroring the language of note 4 on Rivershore's plat, the Covenants' section 15 states:

Tract `
      A' of tidelands to be owned and maintained by owners of record of lots 1 through 13,

and shall be conveyed to each as an undivided 1 /13th interest in and to Tract `A'." 19. In
                                                                                  CP at

section 16, the Covenants state:

         It is intended that the use and enjoyment of said Parcel "A" restricted to the
                                                                      be
         owners of Lots 1 through 13 and the future owners of lots contained within the
                                                                    "
         boundaries of Tax Parcels 122364, 122365 and 500742.
CP at 19.


         The Covenants' Section 19 addresses the effect of failure,to enforce the Covenants:

         The failure on the part of any said parties affected by these restrictions at,any time
         to enforce any of the provisions hereof shall in no event be deemed a waiver
         thereof, or any thereof, or of any existing violation thereof, nor shall the
         covenants and restrictions by judgment of court order affect any other provisions
         hereof, which shall remain in full force and effect.

CP at 20. Section 19 also addresses awarding attorney fees for actions brought to enforce the

Covenants:




2
    These tax parcels refer to other subdivisions outside Rivershore.
                                                   3
41201 2 II /42925 0 II
      - -         - -



         Should any suit or action be instituted by any of said parties to enforce any of said
         reservations, conditions, agreements, covenants and restrictions, or to restrain the
         violation of any thereof, after demand for compliance therewith or for the
         cessation of such violation, events and whether such suit or action be entitled to
         recover from the defendants therein such sum as the court may adjudge
         reasonable attorney fees in such suit or action, in addition to statutory costs and
         disbursements.


CP at 20.

         In 1990, Dale and Leta Anderson purchased lot 4 of Rivershore. In 2002, James Brown,
the owner of lot 13 of Rivershore, filed an application with the City of Vancouver (City)to short-

plat   his lot into two separate       parcels. The Andersons, along with several of their neighbors,

objected to Brown's proposed short plat; the attorney for the Andersons and these neighbors

wrote to a City planner delineating their objections. Among these objections was that Brown's

short plat would violate sections 1, 15, and 16 of the Covenants. The City planner disagreed:
If the authors of the CC Rs [he Covenants] had intended to limit the number of lots within
                         & t

Rivershore Phase        1   to   the   original 13, they       could have   clearly stated   this." CP at 25.


Furthermore, the City planner added that "the city does not enforce CC Rs. These are private
                                                                       &

restrictions adopted by a developer or homeowners' association."CP at 25.

         The   City approved       Brown's short   plat. In the short plat, Brown addressed the 1 /13th

interest that lot 13 had in Tract A, dividing the interest equally so that the owner of each of the

two    new   lots had   a   1 /26th interest in Tract A.       None of the Rivershore lot owners filed any

formal legal objection to the short plat, and the plat became final. After the short plat, Brown



3 The Andersons, as trustees, purchased this lot for the Dale E. Anderson and Leta L.Anderson
Family Trust.
4
    Another objection was that RCW 58. 7.required Brown to submit a plat alteration for the
                                   215
                                     1
changes he had proposed for lot 13.
                                                           4
41201 2 II /42925 0 II
      - -         - -




occupied one of the two new lots and offered the second for sale. The Andersons purchased that

second lot in 2005.

       In 2008, the Andersons purchased lot 2 of Rivershore. The Andersons intended to short-
plat lot 2, employing the services of Planning Solutions, Inc. Under the proposed short plat, lot

2,which already had a single family home on it,would be divided as an " nfill"
                                                                      i       project into two

lots, each with a single family home. CP at 84. Before submitting their short plat application to

the City, the Andersons submitted their short- lat plans to the City for preliminary review. The
                                             p

City scheduled a pre-
                    application conference for September 18, 2008, to address the proposed

short plat.

       Meanwhile, Rivershore's other lot owners (Neighbors)opposed the Andersons' proposed

short plat of lot 2. On September 15, 2008, the respective owners of lots 1, 3,. and lot 1 of
                                                                             12,
                                                                              5-

former lot 13 ( still owned and occupied by Brown) signed an amendment to the Covenants,

adding the following restriction to the end of section 1 and stating that it was effective

immediately: "Lots 1 through 13, consisting of the original 13 lots contained in Rivershore, shall

not be further subdivided   or   short   platted." CP   at 42.   The amendment—
                                                                              accompanied by the

Neighbors' notarized signatures was recorded the following month.
                                —

       The attorney for one of the Neighbors submitted a letter dated September 18, 2008, to a

City senior planner, to snake abundantly clear that the intent has always been for lots within
                     "

Rivershore not to be subdivided, over 80 percent of the Rivershore lot owners recently amended

5 The Andersons made this purchase through River Property, LLC, a company they organized
and of which they are the sole owners.
6
  The Andersons effectively own three lots within Rivershore: lot 2 personally, lot 4 in trust, and
lot 2 of former lot 13 through their LLC. Rather than referring alternately to the trust, the LLC,
and the Andersons personally, we use " he Andersons"generally to refer to the owners of these
                                       t
three lots.
                                                    Z
41201 2 II /42925 0 II
      - -         - -




the Declaration [the Covenants],as authorized by the original Declaration at page 1." at 33.
                                                                                    CP

In this same letter, the Neighbors argued that the City's decision to allow Brown's short plat

contravened the original Covenants' clear intent and that this prior decision should not impact

the City's decision regarding the Andersons' proposed short plat. Accordingly, the Neighbors

argued that the Andersons' proposed short plat would violate not only the Covenants' new

amendment, but also the original Covenants themselves. Finally, the Neighbors argued that the

proposed short plat constituted a subdivision " alteration" under RCW 58. 7. which
                                                                      215,
                                                                        1

mandates that, because this alteration would violate the Covenants, all the lot owners within the .

subdivision must agree in writing to the alteration.

       In December, an assistant City attorney sent a letter to the Andersons' and the Neighbors'

respective counsel, summarizing the City Attorney's Office's conclusion:

       W] believe the short plat should be denied and the applicant advised to submit a
          e
       plat alteration application or a plat alteration with a separate short plat application.
       In order for the plat alteration to be approved, the applicant must obtain the
       agreement of all of the property owners providing that they agree to terminate or
       alter paragraphs 15 and 16 of the CC R' to allow additional undivided
                                                       &s
       ownership of Tract A.

CP at 45.   The assistant City attorney noted that he had "advised [the City's]Development

Review Services to deny the short plat application."CP at 48.

II.    PROCEDURE


       The Andersons did not proceed with the short plat application and, instead, filed a

                                    in Clark   County Superior Court      in   April   2009.   In their
complaint for declaratory relief

complaint, the Andersons specifically sought a "[
                                                d]eclaratory judgment that neither the original

Covenants nor the alleged `Amendment' preclude [ the Andersons] from short-
                                                                          platting their




                                                  G
41201 2 II /42925 0 II
      - -         - -



             7
properties."     CP at 3. After the Neighbors answered and asserted their affirmative defenses, the
Andersons moved for summary judgment with respect to their request for declaratory relief.

         The Neighbors cross moved for summary judgment, but they requested a continuance to
                             -

allow further discovery regarding Rivershore's creators' intentions with respect to Rivershore's

original plat    and Covenants. The trial court denied the continuance.       In April 2010, the trial

court granted in part the Andersons' motion for summary judgment, ruling that (1)it had

authority   under the Uniform        Declaratory Judgments     Act   to grant the declaratory relief

requested; (2)the original Covenants and plat of Rivershore "do not address the further

subdivision of any lot in Rivershore,"
                                     adding that "[ he decisions of this court in this regard are
                                                 t]

not controlling on any determination that may be made on any particular short plat application
that   maybe [sic]determined by     the   City of Vancouver "; ( the amendment to the Covenants was
                                                               3)

invalid because 80 percent of the "` hen
                                   t              owners   of Lots within said subdivision "' had not


approved it;      and (   4) the   Andersons'   action was not prohibited for failure to exhaust

administrative remedies because they did not have a short plat application pending before the

City at that time. CP at 267.

         The trial court also ruled, however, that (1)under the Covenants' section 19, the

Neighbors, having failed to formally object to Brown's short plat, had not waived their rights to

challenge the Andersons' proposed short plat; 2) trial court could not grant the Andersons
                                              ( the

summary judgment on their claim of estoppel because of insufficient information and a material

7 The Andersons also sought "[ uch other relief as the Court may deem to be just and equitable"
                            s]
and an award of legal fees and costs. CP at 3.

8 Brown defended against the Andersons' action separately from the other neighbors. Unless
noted otherwise, however, the Neighbors"includes Brown.
                           "

Ch.7.4 RCW.
    2
                                                     7
41201 2 II /42925 0 II
      - -         - -



issue of   fact; and ( 3)t] [ Neighbors] did. not abandon[ ] their rights under the original
                          "[e
                           h

covenants by permitting or acquiescing to the use and existence of the two Lots created as a

consequence of Brown's] plat of Lot 1, ." at 268.
               [      short          3 CP
       The Andersons moved for clarification     or   reconsideration.   The Neighbors also moved

for reconsideration.   The trial court denied these motions.      The trial court also denied the


Andersons' request for attorney fees. The Neighbors timely appeal.

CASE TWO


1.     BACKGROUND '


       In September 2010, a little over a week after the Neighbors' first appeal to this court,the

assistant City attorney sent a letter to the Andersons' and Neighbors' respective counsel. In the

letter, he informed counsel that "[ n light of the [Superior] Court's decision, the City will accept
                                 i]

a short plat application and process it without the requirement of a plat alteration."CP at 763.
II.    PROCEDURE


       In November 2010, the Andersons submitted an application to the City to short plat lot 2

into two parcels. In April 2011, City staff issued its report and decision, granting preliminary

plat approval with conditions. Later that month, the Neighbors timely appealed this decision,

arguing, among other things, that the Andersons' application should be processed not as a short

plat, but as a'lat alteration.
              p

        In providing its report and recommendation to the hearing examiner, City staff noted that

i] light of the unique nature of this case," which the examiner would have "to consider the
 n                                         in

operation of Washington subdivision laws, the effect of CC R' ,and a decision of the Clark
                                                           &s
County Superior Court," staff would be "taking a rare neutral position in this appeal."CP at
                      the

447. Accordingly, City staff simply recommended the following: "ssue a decision based on the
                                                               I
                                                 8
41201 2 II /42925 0 II
      - -         - -




record giving due consideration to the decision of the Clark County Superior Court dated April 8,

2010, and other materials submitted by the parties to this appeal."CP at 445.

        After a hearing, the examiner issued a decision in June 2011 denying the Neighbors'

appeal of City staff's decision to grant preliminary plat approval. The Neighbors filed a petition

in Clark County Superior Court under the Land Use Petition Act for review of the examiner's
decision. The superior court affirmed that decision. The Neighbors timely appeal.

                                              ANALYSIS


I.      AMENDMENT TO THE COVENANTS


        The Neighbors argue that the trial court erred when it ruled on summary judgment that

the 2008 amendment to the Covenants was invalid. The Andersons maintain that the trial court's


ruling was correct because the Neighbors failed to muster the 80 percent vote required to amend

the Covenants. In light of the ambiguity in the Covenants' language that allows amendment, we

look to the Covenants document in its entirety and to surrounding circumstances to interpret this

language. The intent of the Covenants was to make voting rights directly proportionate to

ownership of the original 13 lots. Therefore we conclude that a one half vote should be allocated
                                                                    -

to each of the two lots within former lot 13. As a result, the 2008 amendment is valid, having

received 10. of 13— 80. percentof the votes.
           5      or 7         —

        We review de     novo   a   ruling granting   summary   judgment. Green v. Normandy Park

Riviera Section Cmty. Club, Inc., Wn. App. 665, 681, 151 P. d 1038 (2007).Interpreting a
                                137                       3

covenant's language is a question of law. Green, 137 Wn. App. at 681. Courts do not strictly

construe covenants but, instead, look to the purpose a covenant seeks to accomplish to determine




     Ch. 36. 0C RCW.
           7
                                                      a
41201 2 II /42925 0 II
      - -         - -



the covenant's intent. Fawn Lake Maint. Comm'n v. Abers, 149 Wn. App. 318, 324, 202 P. d
                                                                                     3

1019 (2009).Three rules in particular govern the court's interpretation of 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.


Burton v. Douglas County, 65 Wn. d 619, 621 22, 399 P. d 68 (1965) citations omitted). In
                               2            -        2             (

this case, the second rule does not apply because we are determining how the voting rights of lot

owners should be allocated under the Covenants; we are not determining whether the restriction

against   subdivision     on   which the lot   owners   voted   was   substantively   invalid. The Andersons


make no argument that the restriction, if properly enacted, was substantively invalid.

          Whether the 2008 amendment to the Covenants is valid, then, hinges on how votes are

allocated among the lot owners. Again, the Covenants' language allowing amendment states:

A] y modification desired may be made by affirmative vote of 80% the then owners of lots
 n                                                             of

within this subdivision and evidenced by a suitable instrument filed for public record."CP at 16.

C]
 onsistent with the original intention to restrict the ownership in Rivershore to 13 single -

family dwelling lots," Neighbors propose that the total number of votes is 13, even though
                     the

the result of Brown's short-
                           platting lot 13 was 14 lots within Rivershore. Appellants' Br. at 18.

Whereas the respective owners of lots 1 through 12 each have a full vote, each owner of the two

smaller lots created from former lot 13 should be given a one half vote. Allocating the votes in
                                                              -

this way means that 10.5 of 13 or 80.7 percentof the votes were cast in favor of the
                               —              —

amendment, and so the amendment was valid.

                                                         10
41201 2 II /42925 0 II
      - -         - -




       The Andersons counter that the trial court properly allocated one full vote to each of the

14 lots within Rivershore in determining whether the amendment had been enacted by a

sufficient percentage of votes. Allocating the votes in this way means that 11 of 14 or 78.
                                                                                     —    5

percentof the votes were cast in favor of the amendment, and so the amendment was not
       —

adopted. The Andersons point out that any amendment to the Covenants must be enacted

according   to the amendment    language   set forth in the Covenants.      The Andersons read this


language to mean that "[ oting rights extend to all `owners of lots' within the subdivision,"
                      v]                                                                    and

nothing in the Covenants or plat supports treating each of the two lots within former lot 13 as

half of a lot for voting purposes. Resp'ts'Br. at 13.

       Additionally, the Andersons ask us to disregard the Neighbors' proposed manner of

allocating votes because the Neighbors have not provided any supporting authority for that
proposal. But the Andersons themselves have provided no authority for their contention that

each of the 14 lot owners should be entitled to one full vote; they simply refer us to the

Covenants' language concerning amendment as supposedly clear evidence of a "one lotone
                                                                                   -

vote"rule. Resp'ts'Br. at 14. And yet the Andersons also admit an ambiguity in the language
exists when   they point            t] is
                           out that "[ here   nothing   in the covenants   or   the   plat ...   determining

what constitutes a `lot'." ts'Br. at 14.
                        Resp'

       Indeed, lot" never defined in the Covenants, nor do the Covenants provide any other
               "   is

express clarification on how votes are to be allocated among "then owners of lots within this
subdivision."CP at 16. In addressing the lack of authority provided on this issue, the Neighbors

rightly emphasize that "[ his is a very fact -specific situation."Appellants' Reply Br. at 8. Thus,
                       t]
to determine how to allocate votes under the Covenants, we must determine the Covenants'

creator's intent by considering the entire document and the surrounding circumstances.
                                                  11
41201 2 II /42925 0 II
      - -         - -



       By their own terms, the original Covenants do not directly address the future division of
lots within Rivershore.    And because we will not imply a restriction in the Covenants against

lawful subdivision of one's own land where the Covenants do not expressly prohibit such an

activity, the original Covenants do not prevent the Andersons or any of the other Neighbors —
                                                              —

from subdividing their lots. But affirming the trial court on this point does not determine the

voting rights of any newly created lots.

       We have closely examined Rivershore's plat and Covenants for any indication of the

creators' intent about how to allocate voting rights after division of a lot within Rivershore. But

because it appears that the creators did not anticipate divisions of the original lots, any specific

intent regarding voting rights following such divisions is simply lacking. For instance, both the

plat in note 4 and the Covenants in section 15 grant an undivided 1 /13th interest in Tract A to the

respective   owners   of lots 1   through   13.   Granting a specific 1 /13th interest in this tract of

tidelands, as opposed to a general right to use the tidelands as a common area, strongly suggests

that Rivershore's creators did not anticipate that any additional lot would be added to Rivershore.

Furthermore, section 16 of the Covenants reads, It is intended that the use and enjoyment of
                                                "

said Parcel `A' Tract A]be restricted to the owners of Lots 1 through 13 and the future owners
                 [

of lots contained within the boundaries of Tax Parcels 122364, 122365 and 500742."CP at 19.

These tax parcels refer to other subdivisions outside Rivershore. If the Covenants' creators had
intended future additional lots within Rivershore, it seems likely, that the obvious question of

what rights these lots' owners would have in Tract A would have been addressed, just as the



11
   The Andersons posited at oral argument that reference to these tax parcels was to land within
Rivershore. Because these parcels are outside Rivershore, it appears that the intent was that lots
in future plats adjacent to Rivershore would also have rights in Rivershore's tidelands.
                                                     12
41201 - II /42925 0 II
      2 -         - -




Covenants specifically addressed the interests that intended future owners of lots outside
Rivershore could have in Tract A.

         There is   a   difference between    expectation    and intent.        The language of the Covenants

shows that the creators did not expect that there would be divisions of the lots within Rivershore.

But the language does not show.that the creators intended that such divisions not be allowed.

Because of this difference, we are no closer to resolving how voting rights are to be allocated

when a Rivershore lot is divided. We cannot resolve the voting rights issue by using the first

Burton rule because here the Covenants' language regarding the creators' intent is not clear and

unambiguous. Having noted that the second Burton rule is inapplicable in this case, we thus

turn to the remaining rule looking to the entirety of the Covenants and the surrounding
circumstances to resolve this issue.


         The entirety of the Covenants supports the notion that voting rights are proportionate to

ownership of the original 13 lots. At purchase, each buyer received ownership of a lot and a
fractional interest in the tidelands.          Each buyer also received certain rights ( along with

obligations) under the Covenants. One of these rights was , right to vote for or against any
                                                          the

proposed amendment to the Covenants. And each original buyer knew that he or she had one

vote,   or   1 /13th of the   voting   power, to approve    or   reject   a   proposed   amendment. Thus a lot


owner knew that if he or she could find two other like-
                                                      minded lot owners, together they could

stop an amendment to the Covenants. A lot owner also knew that if he or she could find ten

other supporters for an amendment, together they could pass it. We see no reason to think that

the Covenants' creators (or the buyers of the original lots for that matter) would have expected

that the proportionate voting calculus would change if a lot was further divided. But under the
Andersons' theory, a lot owner now needs the support of eleven other lot owners to pass an
                                                      13
41201 2 II /42925 0 II
      - -         - -



amendment and only two other owners to stop one. This allocation of voting power is clearly

inconsistent with the rights each individual lot owner received upon buying an original lot, and

thus it is inconsistent with the creators' intent   on   how to   apportion     votes.   The Covenants'


original and continuing intent is that voting rights are to be directly proportionate to ownership

of the original 13 lots. It would be inconsistent with this intent to allow a lot owner to increase

their ( nd their successor's)
      a                     proportionate voting rights by the simple expedient of subdivision.

       Surrounding circumstances support this interpretation       as   well.    Notably, when Brown

subdivided lot 13, the two resulting lots each received a 1 /26th interest in Tract Athat is,the
                                                                                      —

1 13th interest that lot 13 had in Tract A was divided equally between the two new lots. It seems
  /

reasonable to also apportion between these two lots the one vote that lot 13 had rather than to

create two votes out of one. Dividing the vote would make the voting power of each of the two

new lots commensurate with the interest each lot has in Tract A.


       We hold that each of the two lots within former lot 13 has a one half vote for purposes of
                                                                        -

amending the Covenants, and thus the 2008 amendment to the Covenants was approved by an

80.7 percent vote. The trial court's ruling that the amendment was invalid is reversed.
II.    THE ANDERSONS' EQUITABLE CLAIMS

       The Andersons next argue that they are alternately entitled to declaratory relief on the

equitable grounds that the Neighbors were estopped from asserting their claims against the

Andersons. The trial court denied the Andersons' summary relief on this issue, noting that there

was insufficient evidence and'a material issue of fact. Equitable estoppel is a factual issue unless

only one reasonable inference can be drawn from the evidence.,Shows v. Pemberton, 73 Wn.

App. 107, 111,      868   P. d
                           2     164 (   1994). Because the evidence regarding estoppel is

underdeveloped in this case, we affirm the trial court's denial of summary judgment for the
                                                 14
41201 2 II /42925 0 II
      - -         - -



Andersons    on    this issue and remand for further      proceedings. The Andersons' success on this

issue would permit them to move forward with an application to subdivide lot 2 despite the valid

Covenant amendment prohibiting further division of lots within Rivershore. Because the issue of

whether that application should be processed as a short plat or as a plat alteration is not ripe, we

reserve   ruling    on    that issue.      We retain jurisdiction, however, to decide that issue if the

Andersons are successful with their estoppel argument. The parties shall promptly advise us of

any final ruling on the estoppel issue by the trial court, at which time we will determine the need

for an additional briefing.

III.      ATTORNEY FEES SHOULD NOT BE AWARDED


          In connection with the trial court's declaratory judgment, the Andersons argue that the

trial court erred     by denying their request        for attorney fees and costs.   On appeal, both the

Andersons and the Neighbors request attorney fees under RAP 18. and section 19 of the
                                                              1

Covenants if       they   are    the    prevailing party. An attorney fee award must be authorized by

contract, statute, or equitable grounds. City of Sequim v. Malkasian, 157 Wn. d 251, 271, 138
                                                                            2

P. d 943 (2006)quoting Bowles v. Dep't ofRet. Sys.,121 Wn. d 52, 70, 847 P. d 440 (1993)).
 3              (                                        2                2

When a contract provides that attorney fees and costs shall be awarded to one of the parties, the
                                                                                              "

prevailing party . . .          shall be entitled to reasonable attorneys' fees in addition to costs and

necessary disbursements."RCW 4.4.
                             330.
                              8

          Within the muddled language of section 19, the Covenantsa contract between the
                                                                  —

Rivershore lot      owners —      appear to provide reasonable attorney fees for any party successful in

enforcing    the Covenants         or   restraining their violation. Under RCW 4.4.the court may
                                                                               330,
                                                                                8

award these attorney fees to the party that prevails on this action under the Covenants. But here,

neither party is the prevailing party; the outcome of this case still depends on whether the
                                        '
                                                         15
41201 2 II /42925 0 II
      - -         - -




Andersons prevail on their equitable claims on remand (and, if they do, whether they are then

able to proceed with their short plat application to divide lot 2).
                                                                  Accordingly, we affirm the trial

court's ruling denying the Andersons' request for attorney fees and similarly decline to award

attorney fees to either party on appeal.

       We reverse in part, and remand with jurisdiction retained.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




We



           4
       Hunt, P./
              J.




       BKgen,




                                                7
