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Wallick v. Carlson

September 9, 1996

SAMUEL L. WALLICK, JR. AND SARA E. WALLICK, HUSBAND AND WIFE; APPELLANTS,
v.
DON CARLSON AND MARY ANN WILSON-CARLSON, HUSBAND AND WIFE, RESPONDENTS.



Authored by William W. Baker. Concurring: C. Kenneth Grosse, Ronald E. Cox.

The opinion of the court was delivered by: Baker

BAKER, C.J. - Samuel and Sara Wallick appeal the trial court's interpretation of the scope and effect of a restrictive covenant protecting the "middle and background natural panoramic view" from their property. Wallicks unsuccessfully sought to enjoin construction of a house on adjoining property owned by respondents Carlsons, arguing that Carlsons violated the view covenant by blocking their view of a lake. Because there was sufficient evidence to convince a fair-minded, rational person that the covenanting parties did not intend to protect views of the lake, we hold that the trial court did not err. Holding further that attorney fees are not awardable to Carlsons for successfully resisting a temporary restraining order, and finding no merit in the remaining issues, we affirm the judgment and reverse the attorney fee award.

FACTS

Wallicks and Carlsons each own one residential lot in a four-lot subdivision. The properties lie on a slope facing views of Mount Rainier, the Cascades, foothills, and the farmlands in the Enumclaw valley. A portion of the Olympic range is also visible on clear days. The scenery also includes twenty-two acre Bass Lake, located at the bottom of the slope and visible at a depressed angle from both parties' lots. Each parcel in the subdivision is subject to a restrictive covenant protecting the "middle and background natural panoramic view" of other parcels. Carlsons laid the foundation for a house that would undoubtedly block most of Wallicks' view of Bass Lake. After failing to obtain agreement on an alternate site for the house, Wallicks sued for a temporary order restraining construction.

At the subsequent trial, Wallicks presented evidence from John Tyler, an original purchaser in the subdivision, who requested and helped draft the view covenant. Tyler testified that the original draft of the covenant specifically protected views of Bass Lake, and that the developer and its attorney agreed with that intent. The attorney and Tyler testified that the attorney chose to eliminate specific definitions to prevent the exclusion of any item by implication. Carlsons elicited testimony showing that the attorney and developer did not recall any Discussion about including Bass Lake among the protected views. Additional testimony concerned the drafters' expertise in property law and the possibility that the term "middle and background panoramic view" was definable as a technical term of art.

The trial court found no evidence that the developer agreed with Tyler's intent to include views of Bass Lake or that the inexperienced original parties intended to adopt any trade usage of the term "middle and background natural panoramic view". The court concluded that the covenant was therefore inherently ambiguous and interpreted its meaning in light of the common definition of the words and the purposes and intent behind the covenants. Finally, the court concluded that the covenants' overall purposes and the collective interests of the landowners did not permit an interpretation requiring protection of Bass Lake views. It denied injunctive relief against construction of Carlsons' house, but awarded a temporary restraining order against the creation of an architecturally incompatible outbuilding. The court granted attorney fees to Carlsons for their successful defense of the motion for a temporary order restraining the construction of their home.

MOTION TO SUBMIT ADDITIONAL EVIDENCE

Before oral argument, Wallicks moved to submit additional evidence on review under RAP 9.11. The photographs show Carlsons' finished house and its effect on Wallicks' view of the surrounding landscape. We may accept additional evidence on review only where these several conditions are met:

(1) additional proof of facts is needed to fairly resolve the issues on review, (2) the additional evidence would probably change the decision being reviewed, (3) it is equitable to excuse a party's failure to present the evidence to the trial court, (4)

the remedy available to a party through post-judgment motions in the trial court is inadequate or unnecessarily expensive, (5) the appellate court remedy of granting a new trial is inadequate or unnecessarily expensive, and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court. *fn1

Trial photographs include pictures of the lake with a scaled drawing of the Carlsons house superimposed over it. The new photographs confirm that the house obstructs the Wallicks' view of Bass Lake, but they do not portray any information that is not apparent from the trial exhibits. Therefore, the new evidence fails the first, second, and sixth requirements of RAP 9.11. We deny the motion.

ASSIGNMENTS OF ERROR

Carlsons argue that Wallicks did not properly assign error to many of the findings and Conclusions they challenge in their briefs. While a party must assign error to each finding or Conclusion underlying an issue, *fn2 an appellate court may forgive defects in assignment of error where the nature of the challenge is otherwise perfectly clear, *fn3 and where there is no prejudice to the opposing party. *fn4 After a careful review of the briefs, ...


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