                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          April 21, 2020

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 BENJAMIN A. THOMAS, JR. and LINDA                                  No. 52486-4-II
 KAE FERRIS, Co-Trustees of the Benjamin A.
 Thomas, Sr. Credit Shelter Testamentary Trust,

                               Respondents,

        vs.                                                   UNPUBLISHED OPINION

 LANA CHANEY HARMON, and SUNSHINE
 HARMON, husband and wife,

                               Appellants.



       MAXA, J. – Lana and Sunshine Harmon appeal the trial court’s order on partial summary

judgment in a lawsuit filed by Benjamin Thomas and Linda Ferris as co-trustees of the Benjamin

A. Thomas, Sr. Credit Shelter Testamentary Trust (the Trust) relating to certain restrictive

covenants applicable to the Harmons’ property.

       One restrictive covenant required all outbuildings on the Harmons’ property to

complement or be similar to the house constructed on the property in material, color, and design,

including siding and roofing materials. The Harmons’ house had hardi-plank style lap siding and

an asphalt shingle roof, and a barn they constructed had metal siding and roofing. The trial court

ruled as a matter of law that the barn violated the outbuildings restrictive covenant. Another

restrictive covenant prohibited temporary structures. The trial court permanently enjoined the
No. 52486-4-II


Harmons from constructing future temporary structures on their property. Finally, the trial court

awarded attorney fees to the Trust under an attorney fee clause in the covenants.

        After the trial court ruled but before judgment was entered, the Harmons abated the

alleged violation of the outbuildings covenant by replacing the metal siding and roofing with

acceptable materials.

        We hold that (1) whether the trial court erred in granting partial summary judgment to the

Trust regarding the outbuildings covenant is moot because the Harmons abated the alleged

violation, (2) the trial court did not err in permanently enjoining the Harmons from constructing

future temporary structures on their property, (3) the trial court erred in awarding attorney fees to

the Trust regarding the outbuildings covenant but not the temporary structures covenant, and (4)

we decline to consider Sunshine Harmon’s liability on the court’s judgment because he did not

object in the trial court.

        Accordingly, we decline to address the trial court’s order granting partial summary

judgment regarding violation of the outbuildings covenant, and we affirm the trial court’s entry

of the permanent injunction regarding temporary structures. Regarding attorney fees, we reverse

the trial court’s award of attorney fees to the Trust regarding enforcement of the outbuildings

covenant, but we affirm the trial court’s award of attorney fees to the Trust regarding

enforcement of the temporary structures covenant. We also award attorney fees to the Trust on

appeal for only the enforcement of the temporary structures covenant.

                                              FACTS

Restrictive Covenants

        Lana Harmon purchased property from the Trust in September 2014. She was married to

Sunshine Harmon at the time of the purchase, but she took title as her separate property.




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No. 52486-4-II


       The Trustee’s Deed conveyed title to the property subject to certain restrictive covenants.

The “grantor” under the deed was Thomas and Ferris as co-trustees of the Trust. The covenants

benefitted all the lots in the subdivision. The attorney for the Trust drafted these covenants.

       Paragraph 3 of the covenants, “Permitted Uses” stated in part: “All outbuildings must

compl[e]ment (i.e. be similar to) the house style in material, color and design, which shall

include siding and roofing materials.” Clerk’s Papers (CP) at 76. Paragraph 3 did not expressly

prohibit metal siding or roofing on outbuildings.

       Paragraph 6, “Temporary Structures,” stated: “No shacks, garages, barns or other out

buildings [or] structures of a temporary character shall be used on any lot or parcel at any time.

All structures must be built on a permanent foundation.” CP at 77.

       Paragraph 13 of the covenants, “Enforcement,” stated:

       The Grantor and/or a majority of owners of the lots within the Benefitted Tracts
       shall be entitled to bring any suit or action to enforce these Covenants. Should any
       suit or action instituted by the Grantor or a majority of the owners 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, and failure to comply with such demand, then and
       in either of said events and whether such suit or action be reduced to decree or not,
       the parties instituting such suit or action shall be entitled to recover attorney’s fees
       in such suit or action, in addition to statutory costs and disbursements.

CP at 78-79 (emphasis added).

Harmons’ Use of the Property

       The property was undeveloped at the time of purchase and the Harmons intended to build

a home on it. The Harmons moved into a trailer on the property in late September 2014, shortly

after the purchase. They eventually finished construction of the home on the property. The

home had hardi-plank style lap siding and an asphalt-shingle roof.




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No. 52486-4-II


       About June 2015, the Harmons erected several structures on their property, including a

cattle panel with tarp, a dog kennel, a small storage shed, and a greenhouse.

       On October 7, an attorney representing Thomas, co-trustee of the Trust, wrote a letter to

the Harmons “concerning covenant violations on your property.” CP at 130. The letter stated

“you have constructed numerous temporary structures and placed a drop box on the property for

a long period of time, in violation of the Covenant prohibition against temporary structures.” CP

at 130. The letter asked the Harmons to “immediately correct any non-conforming use of the

property by promptly removing the trailer and temporary structures from the property.” CP at

130. The letter threatened legal action if they failed to comply within thirty days of the letter.

The Harmons apparently did not reply.

       The Harmons began construction of a pole-barn in October. The barn had corrugated

sheet metal siding and roofing.

       On December 14, Thomas’s attorney wrote to the Harmons with a final demand to

comply with the covenants. The letter stated that the Harmons had been living in a trailer for

longer than the covenants allowed and had constructed numerous temporary structures, including

a drop box on the property. The letter stated, “This will be our last attempt to compel

compliance with the above-mentioned Covenants. Your failure to comply with this final demand

will result in a lawsuit being filed against you.” CP at 133. The letter stated that it enclosed a

draft complaint, but the complaint is not in the record. The letter concluded, “Please

immediately correct any and all non-conforming use of the property by promptly removing the

trailer and temporary structures from the property.” CP at 134.




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No. 52486-4-II


       Lana Harmon wrote back to the attorney, stating “You need to clarify these said

temporary structures in question.” CP at 136. Sometime after receiving the demand letter from

the Trust, the Harmons removed the cattle panel, storage shed, and greenhouse.

Trust’s Lawsuit Against the Harmons

       In February 2016, the Trust filed a lawsuit against the Harmons, alleging that the

Harmons had breached the restrictive covenants by erecting several temporary, noncompliant

structures on their property and by constructing a barn with siding and roofing that did not

complement the house on their property. The Trust also asserted that in spite of its demands to

the Harmons to abide by the restrictive covenants, the Harmons had failed to correct their

nonconforming uses of their property.

       The Harmons filed an answer to the complaint, representing themselves. Both Lana and

Sunshine Harmon signed the answer. The Harmons denied violating the restrictive covenants or

failing to correct any nonconforming uses. The Harmons then retained counsel and filed an

amended answer. The amended answer continued to name both Lana and Sunshine Harmon as

defendants.

       The Trust moved for partial summary judgment, arguing that as a matter of law the

Harmons had violated the restrictive covenants requiring the siding and roofing materials of

outbuildings to be similar to the home on the property and prohibiting temporary structures. The

Trust requested a permanent injunction prohibiting the Harmons from constructing temporary

structures on their property, ordering them to remove all temporary structures from their

property, and ordering the Harmons to remove the metal siding and roofing from the barn and

replace them with lap siding and asphalt composite shingles.




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No. 52486-4-II


       The trial court granted the Trust’s motion for partial summary judgment. The court

enjoined the Harmons from placing temporary structures on their property in the future and gave

them 150 days to remove and replace the metal siding and roofing on their barn. If they were

unable to do so in 150 days, the Harmons were required to remove the barn.

       The Trust later moved to amend the case caption, replacing “John Doe Harmon” with

“Sunshine Harmon.” CP at 359. The Harmons did not object. The trial court granted the

motion to amend the case caption.

       In July 2018, the Trust moved for entry of final judgment. The Trust requested an award

of attorney fees under paragraph 13 of the restrictive covenants as the “prevailing party.” CP at

361. The Harmons objected to the fees and costs as submitted by the Trust, arguing that they

were not reasonable. The Harmons did not argue that attorney fees were not recoverable under

paragraph 13.

       The trial court permanently enjoined the Harmons from erecting temporary structures on

their property and noted that the violation of the covenants with respect to the pole-barn’s siding

and roofing had been abated. The court entered judgment against the Harmons for $26,616 in

attorney fees. The Harmons did not argue that liability should not be imposed on Sunshine

Harmon.

       The Harmons appeal the trial court’s order granting partial summary judgment and a

permanent injunction, and awarding attorney fees to the Trust.

                                           ANALYSIS

A.     SUMMARY JUDGMENT REGARDING OUTBUILDINGS COVENANT

       The Harmons argue that the trial court erred in granting partial summary judgment to the

Trust regarding the outbuildings covenant because they presented evidence to create an issue of




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No. 52486-4-II


material fact whether their barn’s siding and roofing material “complemented” or was “similar”

to their house. We hold that this issue is moot and decline to consider it.

          Before entry of judgment the Harmons abated the alleged violation of the outbuildings

covenant by replacing the metal siding and roofing on their barn with materials that were

acceptable to the Trust. Both the Harmons and the Trust agree in supplemental briefing that this

issue is now moot. We agree.

          A case is moot if we cannot provide the relief sought or can no longer provide effective

relief. Randy Reynolds & Assocs., Inc. v. Harmon, 193 Wn.2d 143, 152, 437 P.3d 677 (2019).

As a general rule, we do not consider cases that are moot or present only abstract

questions. 4518 S. 256th, LLC v. Karen L. Gibbon, PS, 195 Wn. App. 423, 433, 382 P.3d 1

(2016).

          Here, whether we affirm or reverse the trial court’s ruling on the outbuildings covenant

makes no difference. The alleged violation has been abated. Therefore, the issue is moot.

          The Harmons argue that the outbuildings covenant may be relevant to the trial court’s

award of attorney fees to the Trust, which they challenge. However, as discussed below, we hold

that the Trust is not entitled to recover attorney fees for enforcement of the outbuildings

covenant because the Trust never made a demand for compliance with that covenant. Therefore,

we reverse the award of attorney fees regardless of whether the trial court erred in ruling that the

Harmons violated the outbuildings covenant.

          Because the issue is moot, we decline to address whether the trial court erred in granting

partial summary judgment to the Trust regarding the outbuildings covenant.




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No. 52486-4-II


B.     PERMANENT INJUNCTION REGARDING TEMPORARY STRUCTURES

       The Harmons argue that the trial court erred in granting the Trust a permanent injunction

enjoining the Harmons from placing future temporary structures on their property. The Harmons

claim that a permanent injunction was inappropriate because the Trust provided no evidence that

it had a well-grounded fear of an immediate invasion of its rights under the temporary structures

covenant. We disagree.

       The purpose of restrictive covenants is “to make residential subdivisions more attractive

for residential purposes.” Hollis v. Garwall, Inc., 137 Wn.2d 683, 699, 974 P.2d 836 (1999).

They are enforceable by injunctive relief. Id. A plaintiff seeking injunctive relief must show (1)

a clear legal or equitable right, and (2) a well-grounded fear of immediate invasion of that right.

Id. The party is not required to show substantial damage from the violation of a restrictive

covenant to enjoin a violation. Id. We review a trial court’s decision to grant an injunction to

enforce restrictive covenants for an abuse of discretion. Green v. Normandy Park, 137 Wn. App.

665, 698, 151 P.3d 1038 (2007).

       Here, paragraph 6 of the restrictive covenants provided: “No shacks, garages, barns or

other out buildings [or] structures of a temporary character shall be used on any lot or parcel at

any time. All structures must be built on a permanent foundation.” CP at 77. The Harmons

argue that because they had removed various temporary structures on their property from time to

time in response to the Trust’s complaints, the Trust had not established that its fear of an

immediate violation of the temporary structures covenant was well-grounded.

       However, the Trust submitted numerous photographs of the various shacks, tents, and

other temporary structures the Harmons had placed around their property at various times. The

Trust also submitted evidence of the letters it sent to the Harmons requesting they take down the




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No. 52486-4-II


temporary structures to comply with paragraph 6, as well as a drafted complaint. The Harmons

appeared to dispute that there were structures on their property that violated the temporary

structures covenant. They removed the cattle panel, storage shed, and greenhouse sometime

before the lawsuit was filed, but two domestic dog kennels and an above-ground pool remained.

This evidence was sufficient to conclude that the Trust had a well-grounded fear that the

Harmons would soon violate the temporary structures covenant again.

       The Harmons also argue that the Trust failed to prove it would have no adequate remedy

at law without the permanent injunction, and that money damages would have been sufficient to

compensate the Trust for any resulting loss in property values.

       Injunctive relief is not appropriate where the party requesting the relief has a “ ‘plain,

complete, speedy, and adequate remedy at law.’ ” Bellevue Square, LLC v. Whole Foods Mkt.

Pac. Nw., Inc., 6 Wn. App. 2d 709, 716, 432 P.3d 426 (2018), review denied, 193 Wn.2d 1024

(2019) (quoting Tyler Pipe Indus., Inc. v. Dep’t of Revenue, 96 Wn.2d 785, 791, 638 P.2d 1213

(1982)). In general, courts have found a remedy at law inadequate in three situations: (1) the

injury cannot be compensated by money damages, (2) the damages cannot be ascertained with

certainty, and (3) the remedy at law would be inefficient because the injury is continuous in

nature. Bellevue Square, 6 Wn. App. 2d at 716.

       Money damages are sometimes appropriate to compensate a loss in property value. See

Kucera v. Dep’t of Transp., 140 Wn.2d 200, 210, 995 P.2d 63 (2000). But here, there was no

way to determine with certainty what the Harmons’ future construction of temporary structures

on their property might do to the property values in the rest of the subdivision. In this case,

money damages would have been an inadequate remedy.




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No. 52486-4-II


       Accordingly, we hold that the trial court did not abuse its discretion in granting the

permanent injunction regarding temporary structures on the Harmons’ property.

C.     RECOVERY OF ATTORNEY FEES UNDER THE RESTRICTIVE COVENANTS

       The Harmons argue that the Trust was not entitled to recover reasonable attorney fees

under paragraph 13 of the restrictive covenants because the Trust did not make a demand for

compliance regarding the siding and roofing of the Harmons’ barn or the temporary structures on

the Harmons’ property before filing suit. We agree regarding the violation of the outbuildings

covenant but disagree regarding the violation of the temporary structures covenant.

       1.    Failure to Raise Issue in Trial Court

       Initially, the Trust argues that we decline to consider the Harmons’ argument because

they did not raise the issue in the trial court. The Harmons argue that we still should consider

this issue under RAP 2.5(a)(2) because the Trust failed to prove sufficient facts upon which the

relief of attorney fees could be granted. We agree with the Harmons.

       In response to the Trust’s requests for attorney fees in the trial court, the Harmons

challenged only the reasonableness of the amount of fees requested and did not argue that

attorney fees were not recoverable under paragraph 13 of the restrictive covenants. We generally

do not consider arguments raised for the first time on appeal. See RAP 2.5(a); Kave v. McIntosh

Ridge Primary Rd. Ass’n, 198 Wn. App. 812, 823, 394 P.3d 446 (2017).

       However, RAP 2.5(a)(2) provides that an appellant may raise for the first time on appeal

the “failure to establish facts upon which relief can be granted.” This exception applies where

the proof of particular facts at trial is required to sustain a claim. Mukilteo Ret. Apts., LLC v.

Mukilteo Investors, LP, 176 Wn. App. 244, 246, 310 P.3d 814 (2013). And the rule can apply to

the recovery of attorney fees. Stedman v. Cooper, 172 Wn. App. 9, 24-25, 292 P.3d 764 (2012).




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No. 52486-4-II


       Here, paragraph 13 stated that, to be entitled to recover attorney fees, the grantor must

“demand . . . compliance” with the covenants and the defendants must “fail[] to comply with

such demand” before the grantor files suit. CP at 78-79. Therefore, to obtain relief the Trust

was required to establish two facts: a demand for compliance and a failure to comply with the

demand. The Harmons’ argument is that the evidence is insufficient as a matter of law to

establish these facts. Therefore, we consider the Harmons’ argument for the first time on appeal

under RAP 2.5(a)(2).

       2.    Failure to Assert Affirmative Defense

       The Trust also argues that the Harmons are precluded from arguing that the Trust cannot

recover attorney fees based on a failure to demand compliance because both the Harmons’

answer and amended answer failed to specifically allege the Trust’s failure to make the required

pre-suit demands as required by CR 8(c) and CR 9(c). We disagree with the Trust.

       The Trust claims that the Harmons’ argument that the Trust was required to demand

compliance with the covenants constituted both an affirmative defense under CR 8(c) and a

denial of a condition precedent under CR 9(c) that was required to be specifically pleaded.

       CR 8(c) states that a defendant’s answer must affirmatively set forth a number of

specified affirmative defenses as well as “any other matter constituting an avoidance or

affirmative defense.” However, this requirement is not absolute. Hogan v. Sacred Heart

Medical Ctr, 101 Wn. App. 43, 54-55, 2 P.3d 968 (2000). The purpose of CR 8(c) is to avoid

surprise. Henderson v. Tyrrell, 80 Wn. App. 592, 624, 910 P.2d 522 (1996). If the failure to

plead a defense affirmatively “does not affect the substantial rights of the parties, the

noncompliance will be considered harmless.” Mahoney v. Tingley, 85 Wn.2d 95, 100, 529 P.2d

1068 (1975).




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No. 52486-4-II


       CR 9(c) states: “In pleading the performance or occurrence of conditions precedent, it is

sufficient to aver generally that all conditions precedent have been performed or have occurred.

A denial of performance or occurrence shall be made specifically and with particularity.”

(Emphasis added.)

       The Trust’s complaint “pray[ed]” for reasonable attorney fees under paragraph 13 of the

covenants. CP at 7. The Harmons’ answer expressly denied that the Trust was entitled to

attorney fees, and their amended answer expressly denied the paragraph in which the Trust

requested attorney fees. But neither answer expressly identified the failure to comply with the

requirements of paragraph 13 as an affirmative defense nor expressly asserted the failure of a

condition precedent. And the Harmons did not argue in the trial court that attorney fees were not

recoverable under paragraph 13 because the Trust did not demand compliance.

       We conclude that compliance with the terms of paragraph 13 was not an affirmative

defense that was required to be pleaded specifically. The Trust pleaded that it was entitled to

attorney fees under the terms of paragraph 13. Therefore, the Trust had the burden of proving

compliance with the requirements of that provision; the Harmons did not have the burden of

proving noncompliance as a defense. And the Harmons’ answer was sufficient to put the Trust

on notice that the Harmons were challenging the recovery of attorney fees under paragraph 13.

       We also conclude that CR 9(c) does not apply here. CR 9(c) states that a plaintiff can

aver generally that all conditions precedent have been performed. At that point, the defendant

must specifically deny such performance. However, here the Trust did not allege that it had

performed all conditions precedent, for which it had the burden of proof. Therefore, the

Harmons’ obligation to specifically deny such an allegation was never triggered.




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No. 52486-4-II


       We conclude that the Harmons are not precluded from arguing that the Trust cannot

recover attorney fees based on a failure to demand compliance.

       3.   Paragraph 13 Requirements

       A court may award reasonable attorney fees only when such an award is authorized by

contract, statute, or recognized ground of equity. Union Bank, NA v. Blanchard, 194 Wn. App.

340, 364, 378 P.3d 191 (2016). Paragraph 13, entitled “Enforcement,” stated:

       The Grantor . . . shall be entitled to bring any suit or action to enforce these
       Covenants. Should any suit or action instituted by the Grantor . . . to enforce any
       of said . . . covenants and restrictions, or to restrain the violation of any thereof,
       after demand for compliance therewith or for the cessation of such violation, and
       failure to comply with such demand, then and in either of said events . . . the parties
       instituting such suit or action shall be entitled to recover attorney’s fees in such
       suit or action.

CP at 78-79 (emphasis added). In other words, paragraph 13 allowed an award of attorney fees

when the grantor instituted an action to enforce the covenants after (1) a demand for compliance

and (2) failure to comply with the demand.

            a.    Outbuildings Covenant

       The Harmons argue that they did not received a “demand for compliance” regarding their

barn’s alleged violations of the restrictive covenants because none of the Trust’s pre-suit letters

addressed the issue of the outbuildings covenant.

       Thomas’s attorney sent the Harmons two demands for compliance with the covenants in

2015. However, those demands were specifically limited to the Harmons living in a trailer for

longer than the covenants allowed and constructing temporary structures. The October letter

asked the Harmons to “immediately correct any non-conforming use of the property by promptly

removing the trailer and temporary structures from the property.” CP at 130. The December




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No. 52486-4-II


letter stated, “Please immediately correct any and all non-conforming use of the property by

promptly removing the trailer and temporary structures from the property.” CP at 134.

       The Harmons began construction of a pole-barn in October 2015. But neither letter

demanded compliance with the outbuildings covenant. And the Trust submitted no other

evidence that it made a formal demand for compliance regarding the Harmons’ barn.

       The Trust argues that both the Harmons’ answer and amended answer to the Trust’s

complaint admitted that the Trust made the required pre-suit demands for compliance with the

covenants. But the answers expressly denied that the Harmons had violated any covenants and

denied failing to accede to demands to abide by the covenants. The answers also expressly

denied that the Trust was entitled to recover attorney fees under paragraph 13. We conclude that

these answers cannot fairly be interpreted as admitting that the Trust had made a demand for

compliance regarding the outbuildings covenant.

       Because the Trust did not demand that the Harmons comply with the outbuildings

covenant, the Trust did not satisfy the demand for compliance requirement in paragraph 13.

Accordingly, we hold that the trial court erred in awarding attorney fees to the Trust regarding

enforcement of this covenant.

            b.   Temporary Structures Covenant

       The Harmons did receive demands for compliance regarding the temporary structures

covenant. The October and December letters stated that the temporary structures on the

Harmons’ property violated the restrictive covenants and asked them to immediately remove

temporary structures from the property. Both letters warned that the failure to comply with this

demand would result in a lawsuit being filed against them.




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No. 52486-4-II


       The Harmons argue that because the Trust did not respond to Lana Harmon’s letter

telling the Trust “to clarify these said temporary structures in question,” CP at 136, the Harmons

did not receive a demand for compliance under paragraph 13 with respect to temporary

structures. But paragraph 13 contains no requirement that a demand for compliance be

uncontested before the party initiating a suit to enforce the covenants is entitled to attorney fees.

That the Harmons disagreed they were violating the restrictive covenants regarding temporary

structures does not alter the fact that the Trust sent them a demand for compliance.

       We hold that the trial court did not err in ruling that the Trust was entitled to recover

attorney fees regarding enforcement of the temporary structures covenant.

       4.    Fee Award Against Sunshine Harmon

       The Harmons argue that the award of attorney fees under the restrictive covenants against

Sunshine Harmon was not appropriate because he was not an owner of the property at issue, nor

was he a party to the restrictive covenants. The Trust argues that the Harmons should not be

entitled to raise this argument for the first time on appeal.

       As stated above, we generally do not consider arguments raised for the first time on

appeal. See RAP 2.5(a); Kave, 198 Wn. App. at 823. Here, the Harmons did not object to the

inclusion of Sunshine Harmon as a defendant in the lawsuit or to the amendment of the case

caption to replace “John Doe Harmon” with “Sunshine Harmon.” Finally, the Harmons did not

object to entry of judgment against both Lana and Sunshine Harmon. Accordingly, we decline to

consider this argument.

       5.    Attorney Fees on Appeal

       The Trust requests its attorney fees on appeal under paragraph 13 of the restrictive

covenants. This appeal is part of the Trust’s suit to enforce the restrictive covenants, for which




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No. 52486-4-II


paragraph 13 allowed the recovery of attorney fees under certain conditions. Based on the

court’s holdings above, we hold that the Trust is entitled to recover its attorney fees for enforcing

the temporary structures covenant but not for the outbuildings covenant.

                                          CONCLUSION

        We decline to address the trial court’s order granting partial summary judgment regarding

violation of the outbuildings covenant, and we affirm the trial court’s entry of the permanent

injunction regarding temporary structures. Regarding attorney fees, we reverse the trial court’s

award of attorney fees to the Trust for enforcement of the outbuildings covenant, but we affirm

the trial court’s award of attorney fees to the Trust for enforcement of the temporary structures

covenant. Finally, we award attorney fees to the Trust on appeal for only the enforcement of the

temporary structures covenant.

        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

2.06.040, it is so ordered.



                                                      MAXA, J.


 We concur:



 SUTTON, A.C.J.




 GLASGOW, J.




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