Dale And Leta Anderson Et Al, Res/cr-apps V Estate Of James W. Brown Et Al, App/cr-res (Majority and Order)
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Fif ED j °sa rl J' i II Lf = 1s 10 2013 IN THE COURT OF APPEALS OF THE STATE OF W. DIVISION II s' HIN AN 5' N T BY _ EP LAY 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, ORDER GRANTING MOTION V. FOR RECONSIDERATION IN PART AND AMENDING OPINION JAMES W. BROWN; ROBERTA D. DAVIS; KAE HOWARD, Trustees KAE the of HOWARD TRUST; MICHAEL J. and CRISTI D. husband DEFREES, and TUAN wife; TRAN and KATHY HOANG, husband and THOMAS wife; J. KINGZETT, husband S. GLORIA and and wife; LARRY R. and SUSAN I. MACKIN, husband and wife; TOD E. MCCLASKEY, JR. and VERONICA A. MCCLASKEY, Trustees the of MCCLASKEY FAMILY TRUST FUND A; CRAIG STEIN; RICHARD and CAROL TERRELL, husband and wife, On September 19, 2013, the Respondents filed a motion for reconsideration of the September 4, 2013 unpublished opinion. After review of the motion and the files and records herein, we grant the motion and amend the opinion as follows: It is ordered that the second full paragraph on page 5 that reads: Meanwhile, Andersons' Rivershore' s proposed short plat of Neighbors) opposed the other lot lot 2. On September 15, 2008, the respective owners ( owners of lots 1, 3, 5 - 12, and lot 1 of 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 by subdivided or short the Neighbors' platted." CP at 42. The notarized signatures was recorded amendment accompanied the following month. 41201 -2 -II / 42925 -0 -II is deleted. The following paragraph is inserted in its place: Meanwhile, Rivershore' s other lot owners ( Neighbors) opposed the Andersons' proposed short plat of lot 2. On September 15, 2008, signatures purporting to be those of the respective owners of lots 1, 3, 5 - 12, and lot 1 of former lot 13 ( still owned and occupied by Brown) were affixed to an amendment to the Covenants, adding the following restriction to the end of section 1 and stating that it was effective immediately: " in Rivershore, contained 42. The Lots 1 through 13, shall not be further amendment accompanied by consisting of the original 13 lots subdivided or short platted." notarized signatures was following month. Dated this j day 2 of J. We concur: a' J Bj0 Iffi, J. NJ CP at recorded the FILED GODP-r aE APPEALS DIVISION Ii 2913 SEP IN THE COURT OF APPEALS OF THE STATE OF 'WASHIATA 01c' STATE DIVISION II WASHINGTON O y.__ DE JTY DALE E. and LETA L. ANDERSON; DALE E. ANDERSON Trustees of LETA L. ANDERSON, and the DALE E. ANDERSON AND No. 41201 -2 -II consolidated with No. 42925 -0 -II LETA L. ANDERSON FAMILY TRUST; and RIVER PROPERTY LLC, Respondents /Cross Appellants, u JAMES W. BROWN; ROBERTA D. DAVIS; KAE Trustees HOWARD, of UNPUBLISHED OPINION KAE the HOWARD TRUST; MICHAEL J. and CRISTI D. DEFREES, husband and wife; TUAN TRAN and KATHY HOANG, husband and J. THOMAS wife; KINGZETT, husband GLORIA and and S. wife; LARRY R. and SUSAN I. MACKIN, husband and wife; TOD E. MCCLASKEY, JR. and VERONICA A. MCCLASKEY, Trustees of the MCCLASKEY FAMILY TRUST - UND A; F 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. remanded for further We also conclude proceedings. that the Andersons' equitable claims must be 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 parry is of yet the prevailing party in this dispute. Accordingly, we reverse in part, and remand with jurisdiction retained. FACTS CASE ONE 1. 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: " i The City of Vancouver annexed Rivershore and the surrounding area in January 1997. 2 Tract ` A' 41201 -2 - / 42925 -0 -II II to be owned and maintained by owners of record of lots 1 - 13; will be conveyed as an undivided 1/ 13 interest in, and Clerk' s Papers ( CP) at 608. to tract ` A. "' Rivershore' s developer created and recorded a declaration of covenants and restrictions for 'Rivershore ( Covenants) for their provides 80% at the time amendment: "[ of Rivershore' s creation. The Covenants' introduction A]ny modification desired may be made by affirmative vote of of the then owners of lots within this subdivision and evidenced by a suitable instrument 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'." CP at 19. In section 16, the Covenants state: It is intended that the use and enjoyment of said Parcel " 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. 1' 1 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.3 In 2002, James Brown, the owner of lot 13 of Rivershore, filed.an application with the City of Vancouver ( City) to shortplat 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 Anderson and these neighbors wrote to a City planner their delineating Among these objections was that Brown' s objections. short plat would violate sections 1, 15, and 16 of the Covenants.4 The. City planner disagreed: If the authors of the CC &Rs [ the Covenants] had intended to limit the number of lots within 1 to the Rivershore Phase Furthermore, the City restrictions adopted The City by original 13, they could planner added that " the city developer homeowners' a approved or Brown' s does have clearly stated not enforce CC & Rs. association." this." CP at 25. These are private CP at 25. In the short plat, Brown addressed the 1 / 13th short plat. interest that lot 13 had in Tract A, dividing the interest equally so that the owner of each of the two new lots had formal legal a None of the Rivershore lot owners filed any 1 / 26th interest in Tract A. 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. 17. 215 required Brown to submit a plat alteration for the changes he had proposed for lot 13. 4 41201 -2 -1I / 42925 -0 -II occupied one of the two new lots and offered the second for sale. The Andersons purchased that second lot in 2005.5 In 2008, the Andersons purchased lot 2 of Rivershore. 6 The Andersons intended to shortplat 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 " infill" 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-plat plans to the City for preliminary review. The City scheduled a pie -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. former lot 13 ( On September 15, 2008, the respective owners of lots 1, 3,. 5- 12, and lot 1 of 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 Neighbors' subdivided or short platted." notarized signatures- - CP at 42. The amendment accompanied by the 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 " the Andersons" generally to refer to the owners of these three lots. 5 41201 -2 -II / 42925 -0 -II the Declaration [ the Covenants], by the as authorized original Declaration at page 1." CP at 33. 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, proposed but short also plat the original Covenants themselves. constituted a Finally, the Neighbors argued that the under alteration" subdivision " RCW 58. 17. 215, which 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] e believe the short plat should be denied and the applicant advised to submit a 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' s to allow additional undivided ownership of Tract A. CP at 45. The assistant Review Services to II. City deny the attorney noted that short plat application." he had " advised [ the City' s] Development CP at 48. PROCEDURE The Andersons did not proceed with the short plat application and, instead, filed a in Clark complaint for declaratory complaint, the Andersons specifically Covenants nor relief County Superior sought a "[ the alleged ` Amendment' In their d] eclaratory judgment that neither the original preclude [ n Court in April 2009. the Andersons] from short- platting their 41201 -2 -II / 42925 -0 -II 7 CP properties." at After the Neighbors 3. answered and asserted their 8: 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 court granted authority Covenants. and original plat in requested; ( 2) subdivision of the Andersons' part the under the The trial Uniform court motion continuance. and In April 2010, the trial for summary judgment, ruling that ( 1) plat of it had to grant the declaratory relief Declaratory Judgments Act Covenants original denied the Rivershore " do not address the further any lot in Rivershore," adding that "[ t]he decisions of this court in this regard are not controlling on any determination that may be made on any particular short plat application that maybe [ sic] determined invalid because 80 approved it; and ( by the City of the "` then percent of 4) Andersons' the Vancouver "; (3) the amendment to the Covenants was owners of Lots within said subdivision "' had not 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) the trial court could not grant the Andersons summary judgment on their claim of estoppel because of insufficient information and a material 7 The Andersons also sought "[ s] uch other relief as the Court may deem to be just and equitable" 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. 9 Ch. 7. 24 RCW: 7 41201 -2 -I1 / 42925 -0 -II issue of fact; and ( t] he [ Neighbors] 3) "[ did, not abandon[ ] their rights under the original covenants by permitting or acquiescing to the use and existence of the two Lots created as a Brown' s] consequence of [ The Andersons for reconsideration. short moved The trial plat for of Lot 13." CP at 268. clarification or reconsideration. denied these court motions. The Neighbors also moved The trial court also denied the Andersons' request for attorney fees. The Neighbors timely appeal. CASE TWO BACKGROUND ' I. In September 2010, a little over a week after the Neighbors' first appeal to this court; the assistant City attorney letter, he informed to the Andersons' sent * letter a' counsel that "[ and Neighbors' respective counsel. In the i]n light of the [ Superior] Court' s decision, the City will accept a short plat application and process it without the requirement of a plat alteration." CP at 763. PROCEDURE II. In November 2010, the Andersons submitted an application to the City to short plat lot 2 into two plat parcels. In April 2011, City staff issued its report and decision, granting preliminary 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'plat alteration. In providing its report and recommendation to the hearing examiner, City staff noted that i] n light of the unique nature of this case," in which the examiner would have " to consider the operation of Washington subdivision laws, the effect of CC &R' s, and a decision of the Clark County 447. Superior Court," the Accordingly, City staff staff would simply be " taking recommended a rare neutral position the following: " Issue in this a appeal." decision based CP at on the 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 staffs decision to grant preliminary plat approval. The Neighbors filed a petition in Clark County Superior Court under the Land Use Petition Act10 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 The intent of the Covenants was to make voting rights directly proportionate to language. ownership of the original 13 lots. Therefore we conclude that a one -half vote should be allocated to each of received the two lots 10. 5 We of review Riviera Section covenant' s 13-- within or de 80. 7 novo Cmty. Club, language is former lot 13. percent of a As a result, the 2008 amendment is valid, having the votes. ruling granting summary judgment. Inc., 137 Wn. a question of law. App. Green v. Normandy Park 665, 681, 151 P. 3d 1038 ( 2007). Green, 137, Wn. App. at 681. Interpreting a Courts do not strictly construe covenants but, instead, look to the purpose a covenant seeks to accomplish to determine Ch. 36. 70C RCW. a 41201 -2 -11 / 42925 -0 -II the covenant' s Fawn Lake Maint. Comm' n v. Abers, 149 Wn. App. 318, 324, 202 P. 3d intent. 1019 ( 2009). Three rules in particular govern the court' s interpretation of covenants: The primary objective is to determine the intent of the parties to the agreement, and, in determining intent, clear and unambiguous language will be 1) Restrictions, being in derogation of the common law right to use land for all lawful purposes, will not be extended by implication given its manifest meaning. ( 2) 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.2d 619, 621 -22, 399 P. 2d 68 ( 1965) ( citations omitted). In 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 A] ny within among the lot modification this owners. Again, the Covenants' language allowing amendment states: desired may be made subdivision and evidenced by affirmative vote of by a suitable 80% of the then owners of lots 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," the Neighbors propose that the total number of votes is 13, even though 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 this way created means from former lot 13 that 10. 5 of 13 or should 80. 7 be half vote. given a one - Allocating the votes in of the votes were cast in favor of the percent amendment, and so the amendment was valid. 10 41201 -2 -II / 42925 -0 -II- The Andersons counter that the trial court properly allocated one fall 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 of the votes were cast in .favor of the amendment, and so the amendment was not percent The Andersons point out that any amendment to the Covenants ,must be enacted adopted. according to the amendment language language to that "[ mean set forth in the Covenants. v] oting rights extend to all ` owners of lots' The Andersons read this within the subdivision," 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 Additionally, Resp' ts' Br. at 13. purposes. 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 vote" rule. Resp' ts' exists when they Br. point out what constitutes a ` lot'." Indeed, " at 14. amendment as supposedly clear evidence of a " one lot - ne o And yet the Andersons also admit an ambiguity in the language that "[ t]here is nothing in the covenants or the plat ... determining Resp' ts' -Br. at 14. lot" is never defined in the Covenants, nor do the Covenants provide any other express clarification on how votes are to be allocated among " then owners of lots within this subdivision." rightly CP at 16. In addressing the lack of authority provided on this issue, the Neighbors emphasize that "[ t] his is a specific very fact - situation." Appellants' Reply Br. at 8. Thus, 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 And because we will not imply a restriction in the Covenants against Rivershore. 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 But affirming the trial court on this point does not determine the from subdividing their lots. 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, said of section Parcel ` A' [ lots 16 the Covenants reads, " It is intended that the use and enjoyment of Tract A] be restricted to the owners of Lots 1 through 13 and the future owners contained within These tax of parcels refer the boundaries to of Tax Parcels 122364, 122365 other subdivisions outside Rivershore. 11 and 500742." CP at 19. 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 i i 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 -2 -I1 / 42925 -0 -II Covenants specifically addressed the interests that intended future owners of lots outside Rivershore could have in Tract A., There is difference between a 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 Having unambiguous. 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 Each buyer fractional interest in the tidelands. obligations) under the Covenants. proposed amendment vote, or 1 / 13th of received certain rights ( along with One of these rights was , he right to vote for or against any t to the Covenants. the voting also power, to And each original buyer knew that he or she had one 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 other supporters for to the Covenants. an amendment, A lot owner also knew that if he or she could find ten 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 Anderson' theory, a lot owner now needs the support of eleven other lot owners to pass an 13 41201- 2- 11142925- 0- 11 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 (and their successor' s) proportionate voting rights by the simple expedient of subdivision. Surrounding circumstances support lot. 13, the two resulting lots subdivided this interpretation each received a as well. Notably, when Brown that is, the 1 / 26th interest in Tract A 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 Anderson. 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 App. one reasonable 107, 111, inference 868 P. 2d can be drawn from the 164 ( 1994). evidence., Shows v: Pemberton, 73 Wn. 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 -I1 / 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 Andersons on We retain jurisdiction, however, to decide that issue if the that issue. are successful with their The parties shall promptly advise us of estoppel argument. any final ruling on the estoppel issue by the trial court, at which time we will determine the need for an additional briefing. ATTORNEY FEES SHOULD NOT BE AWARDED III. 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. 1 and section 19 of the Covenants if they are the prevailing party. contract, statute, or equitable grounds. P. 3d 943 ( 2006) ( quoting Bowles When a contract provides prevailing party . . . Rivershore lot City of Sequim v. Malkasian, 157 Wn.2d 251, 271, 138 Dep' t of Ret. Sys., that attorney' fees 121 Wn.2d 52, 70, 847 P. 2d 440 ( 1993)). and costs shall be awarded to one of the. parties, " the shall be entitled to reasonable attorneys' fees in addition to costs and necessary disbursements." Within the v. An attorney fee award must be authorized by RCW 4. 84. 330. muddled language of section 19, the Covenants a contract between the appear to provide reasonable attorney fees for any party successful in owners enforcing the Covenants or restraining their violation. Under RCW 4. 84. 330, the court may 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 2. 06. 040, it is so ordered. We c incur: 1 F Hunt, P. B' gen, 16
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