DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: |
41062-1 |
Title of Case: |
Norm & Janet Bruns, Appellants V The Cofer Living Trust, Respondents |
File Date: |
02/28/2012 |
SOURCE OF APPEAL
----------------
Appeal from Kitsap Superior Court |
Docket No: | 06-2-01696-5 |
Judgment or order under review |
Date filed: | 07/15/2010 |
Judge signing: | Honorable Leila Mills |
JUDGES
------
Authored by | Marywave Van Deren |
Concurring: | Lisa Worswick |
| Christine Quinn-Brintnall |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| David Lieberworth |
| Attorney at Law |
| 1191 2nd Ave Ste 1800 |
| Seattle, WA, 98101-2996 |
Counsel for Respondent/Cross-Appellant |
| Quentin Wildsmith |
| Lasher Holzapfel Sperry & Ebberson PLLC |
| 601 Union St Ste 2600 |
| Seattle, WA, 98101-4000 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
NORM and JANET BRUNS, husband and wife,
Appellants/Cross Respondents, No. 41062-1-II
v. UNPUBLISHED OPINION
THE WILLIAM M. AND WILHELMA COFER
LIVING TRUST,
Respondent/Cross Appellant.
Van Deren, J. -- The Kitsap County Superior Court entered a partial summary judgment
order in favor of Norm and Janet Bruns, finding that improvements to neighboring property
owned by the William and Wilhelma Cofer Living Trust violated restrictive covenants. The trial
court later held a bench trial on the remaining issues of remedies, affirmative defenses, and
counterclaims. Following the bench trial, the trial court entered an injunction against the Cofers
that allowed them to elect one of two remedies to bring their property into compliance with the
neighborhood restrictive covenants. The Brunses appeal, asserting that the trial court erred by:
(1) entering an injunction that did not permanently remedy the Cofers' violations of the restrictive
covenants; (2) denying the Brunses' request for monetary damages; and (3) denying their request
for sanctions against the Cofers. The Cofers cross-appeal, asserting that the trial court erred by:
(1) granting partial summary judgment in favor of the Brunses; (2) denying the Cofers' affirmative
No. 41062-1-II
defenses; and (3) denying their request for sanctions against the Brunses. We affirm.
FACTS
William and Wilhelma Cofer live next door to Norm and Janet Bruns in Bainbridge
Landing, a 12-lot residential subdivision in Bainbridge Island, Washington. The Cofers are
trustees of the William M. and Wilhelma Cofer Living Trust, which purchased a home on Lot 11
in Bainbridge Landing in March 2003. In December 2003, the Cofers, through their living trust,
purchased Lot 10 in Bainbridge Landing, which was undeveloped property neighboring the
Brunses' home on Lot 9. The Cofers planned to build a residence on Lot 10 that included an
accessory dwelling unit (ADU), "as the term is defined by the Bainbridge Island Municipal Code,"
above their detached garage. Clerk's Papers (CP) at 14.
John and Alice Tawresey developed Bainbridge Landing in 1979 and recorded restrictive
covenants applicable to all subdivision lots. The Bainbridge Landing restrictive covenants state in
part:
1. No lot shall be used except for residential purposes. No building shall be
erected or permitted on any lot other than one detached single family dwelling
and private garage for not more than three cars.
2. No building shall be erected, placed or altered on any lot until the construction
plans and specifications and a plan showing the location of the structure have
been approved by the [a]rchitectural [c]ontrol [c]ommittee [ACC]. The
[ACC], in making a decision, shall consider: (1) the quality of the architectural
design; (2) harmony of materials with existing structures and/or surroundings;
(3) conformity with lot topography; (4) removal of existing trees and
vegetation.
3. No dwelling shall be constructed with a ground floor area of the main structure,
exclusive of one-story open porches and garages of less than 1000 square feet.
No prefabricated, modular or premanufactured homes shall be permitted on any
lot. No trailers or mobile homes shall be permitted on any lot.
. . . .
7. No structures of a temporary character, trailer, basement, tent, shack, garage,
barn or other outbuilding, shall be used on any lot at any time as a residence,
either temporarily or permanently.
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No. 41062-1-II
. . . .
16. The [ACC]'s approval or disapproval as required in these covenants shall be in
writing. In the event the committee or its designated representative fails to
approve or disprove within 30 days after plans and specifications have been
submitted to it, or in any event if no suit to enjoin the construction has been
commenced prior to the completion thereof, approval will not be required and
the related covenants shall be deemed to have been fully complied with.
17. These covenants are to run with the land and shall be binding on all parties and
all persons claiming under them for a period of 30 years from the date these
covenants are recorded, after which time said covenants shall automatically be
extended for successive periods of 10 years unless an instrument signed by a
majority of then owners of the lots has been recorded, agreeing to change said
covenants in whole or in part.
18. Enforcement shall be by proceedings at law or in equity against any person or
persons violating or attempting to violate any covenant either to restrain
violations or to recover damages.
19. Invalidation of any one of these covenants by judgment or court order shall in
no way affect any of the other provisions which shall remain in full force and
effect.
Ex. 2.
Pursuant to Paragraph 2 of the restrictive covenants, the Cofers submitted their building
plans to the ACC for approval before beginning construction on their new home. On April 11,
2005, the ACC approved the Cofers' building plans, indicating that the plans complied with all of
the subdivision's guidelines. The building approval letter requested that the Cofers "submit [their]
choice of roofing material (color and type) and [their] exterior paint color to [the ACC] for
approval prior to applying it." CP at 363. In December 2005, The Cofers submitted their choice
of roofing material and paint color to the ACC.
Before beginning construction of their new residence, the Cofers reviewed the Bainbridge
Island Municipal Code and discussed the zoning ordinances with city employees. Former
Bainbridge Island ordinance 92-08, section 18.06.010 (1992), in effect at the time, allowed for an
ADU that could be attached or detached from the main dwelling but the ordinance required that
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No. 41062-1-II
an ADU not exceed 800 square feet. Although the zoning ordinances allowed for the
construction of an ADU, the Cofers concede that ordinances do not abrogate restrictive
covenants.
On July 19, 2005, the city of Bainbridge Island issued a building permit to the Cofers. On
July 30, the Cofers notified the other residents of Bainbridge Landing that they would begin
constructing their new home, but they did not specify that they planned to build an ADU above
their detached garage. The Cofers applied for a second address for the ADU on May 2, 2006.
On May 26, 2006, the Cofers sold their home on Lot 11. After hearing about the ADU, Janet
Bruns went to the Bainbridge Island city hall to review the Cofers' construction file and to discuss
the ADU with city staff.1
The Brunses served a summons and complaint on the Cofers on July 7, 2006, and, on July
18, 2006, filed their complaint in the Kitsap County Superior Court. The Brunses' complaint
alleged that the Cofers' ADU violated the Bainbridge Landing restrictive covenants. The Brunses
sought to enjoin construction of the ADU and requested money damages. The Brunses later filed
an amended complaint to add an allegation that the Cofers violated paragraph 2 of the restrictive
covenants by failing to submit their roofing materials and exterior colors to the ACC for approval.
The Cofers moved into their new residence on July 26, 2006.
After unsuccessful settlement negotiations, the Cofers moved for summary judgment on
May 25, 2007. In their opposition to the Cofers' summary judgment motion, the Brunses
withdrew their complaint regarding the Cofers' failure to submit their choice of roofing materials
1 Although not relevant to any issue on appeal, the parties continue to disagree about when the
Brunses became aware that the Cofers were constructing an ADU. We do not address this
ongoing dispute.
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No. 41062-1-II
and exterior color to the ACC, indicating that they had discovered that the Cofers did comply
with this covenant provision. The trial court denied the Cofers' summary judgment motion.
The Cofers filed their answer to the Brunses complaint on June 26, 2007. The Cofers
raised numerous affirmative defenses and asserted counterclaims against the Brunses, which
counterclaims included allegations of tortious interference with business expectancy and violation
of the Bainbridge Landing restrictive covenants by the Brunses. The Cofers also requested
sanctions under CR 11 and RCW 4.84.185 based on the Brunses' claim that the Cofers violated
the restrictive covenants by failing to submit their choice of roofing materials and exterior paint,
which claim the Brunses had withdrawn on May 25, 2007.
The parties then filed cross-motions for partial summary judgment. The trial court granted
partial summary judgment in favor of the Brunses, finding that the Cofers' garage ADU violated
the Bainbridge Landing restrictive covenants. Its order stated:
1. The garage ADU on the property of defendant The William M. And Wilhelma
Cofer Living Trust (the "Cofers") violates Paragraph 1 of the Protective
Covenants because it exceeds the limitation of one detached single family
dwelling and private garage.
2. The Cofers' garage ADU violates Paragraph 7 of the Protective Covenants
because it utilizes a garage [and]/or other outbuilding as a residence.
3. The Cofers' garage ADU violates Paragraph 3 of the Protective Covenants by
having a dwelling of less than 1,000 square feet.
4. Compliance with the City of Bainbridge Island's zoning rules does not allow
the Cofers to avoid the limitations that the Protective Covenants otherwise
impose.
5. Submitting building plans to the ACC is not enough to avoid or alleviate the
restrictions otherwise imposed by the Protective Covenants.
6. Based upon the foregoing, the Brunses' Partial Summary Judgment Motion is
therefore GRANTED.
CP at 194.
After the trial court ordered partial summary judgment in favor of the Brunses, the Cofers
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No. 41062-1-II
voluntarily took action to bring their building into compliance with the Bainbridge Landing
restrictive covenants. They: (1) terminated the ADU tenant's lease on January 31, 20102; (2)
removed the mailbox and address assigned to the ADU; (3) removed the stove and refrigerator
from the ADU; (4) terminated the 220 electric service to the ADU by following the instructions of
a certified electrical inspector; and (5) certified the decommission of the ADU with the city of
Bainbridge Island. The Cofers also hired an architect to create plans to connect their garage to
their house. Thereafter, the ACC and the city of Bainbridge Island approved the Cofers' revised
building plans.
The trial court conducted a bench trial on the remaining claims, counterclaims, and
affirmative defenses. The trial court's findings and conclusions incorporated its December 11,
2009, summary judgment order in favor of the Brunses, denied imposing sanctions against either
party, denied all of the Cofers' counterclaims and affirmative defenses, and denied the Brunses'
request for monetary damages.
The trial court enjoined the Cofers from violating the Bainbridge Landing restrictive
covenants but allowed them to elect one of two ways to remedy their noncompliance with those
covenants, dependent on whether they connected their house and garage. Both parties appeal.
ANALYSIS
I. The Brunses' Appeal
A. Adequacy of the Trial Court's Injunction
The Brunses contend that the trial court abused its discretion by allowing the Cofers to
2 The Cofers' tenant had been renting the ADU for $750 a month beginning on July 1, 2008. The
Cofers previously rented out the ADU for $750 a month to another tenant between August 1,
2007, and November 30, 2007.
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No. 41062-1-II
choose which injunctive remedy to pursue because neither of the injunction's elective remedies
adequately protects the Brunses from future violations of the Bainbridge Landing restrictive
covenants. We disagree.
1. Standard of Review
We review a trial court's decision to grant or withhold an injunction, and the injunction's
terms, for abuse of discretion. Kucera v. Dep't of Transp., 140 Wn.2d 200, 209, 995 P.2d 63
(2000). We give great weight to a trial court's injunction order, interfering only if the trial court's
order is based on untenable grounds, is manifestly unreasonable, or is arbitrary. Federal Way
Family Physicians, Inc. v. Tacoma Stands Up For Life, 106 Wn.2d 261, 264, 721 P.2d 946
(1986).
We review a trial court's conclusions of law supporting an injunction, including the
interpretation of restrictive covenants, de novo. Rainer View Ct. Homeowners Ass'n v. Zenker,
157 Wn. App. 710, 719, 238 P.3d 1217 (2010), review denied, 170 Wn.2d 1030 (2011); Bloome
v. Haverly, 154 Wn. App. 129, 137-38, 225 P.3d 330 (2010). We review a trial court's findings
of fact supporting an injunction to ascertain whether substantial evidence in the record supports
the findings. Rainer View Ct., 157 Wn. App. at 719. Substantial evidence is "a quantum of
evidence sufficient to persuade a fair-minded person that the premise is true." Rainer View Ct.,
157 Wn. App. at 719.
2. First Elective Remedy -- House and Garage Not Connected
The trial court's first elective remedy under the injunction addressed the situation if the
garage remained separate from the house:
The first remedy assumes that there is no structural connection between the
[Cofers'] garage and the main house on the Property. The eating area at the
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No. 41062-1-II
Property has now been effectively removed as the 220 electrical line has been
decommissioned and the stove and refrigerator have been physically removed.
This Court is therefore satisfied that the area above the garage is no longer a
separate self-contained residence. The violation of the covenants has effectively
been removed. The Court does not require further action beyond what has already
been done under this remedy to bring the [Cofers] into compliance with Covenant
No. 7. Court requires the continued absence of the electrical line, 220 volt line,
stove and refrigerator so long as the garage remains a separate unit.
CP at 219.
But the Brunses' contentions regarding the trial court's first elective remedy are moot
because the Cofers finished construction of the connection between their house and their garage,
as we learned at oral argument.3 Thus, we do not further discuss this elective remedy and turn to
consideration of the trial court's second elective remedy.
3. Second Elective Remedy -- House and Garage Connected
The trial court's second elective remedy addressed compliance with the injunction if the
garage and house were integrated, i.e., were connected:
The second alternative remedy which would satisfy this injunction assumes
that the [Cofers] elect[] to connect the garage and the main house in accordance
with their proposed plan, thus creating a single residence. Provided the connection
satisfies any governmental requirements including those of the City of Bainbridge
Island and the ACC requirements, this Court need not address the parameters or
design of the connection at this time.
CP at 219.
The Brunses argue that the trial court erred in fashioning its second elective remedy
because it would allow the Cofers to return the electrical line, 220 volt line, and stove and
refrigerator to the living quarters above their garage once the garage is attached to their house.
The Brunses contend that, if the Cofers restore the living quarters above their garage to its
3 Wash. Court of Appeals, Bruns v. Cofer Living Trust, No. 41062-1-II, oral argument (Dec. 1,
2011), at 3 min., 32 sec. (on file with court).
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No. 41062-1-II
previous condition, they would violate paragraphs 1 and 3 of the restrictive covenants because
their lot would contain multiple dwellings. The Brunses appear to argue that even if the trial
court properly interpreted the meaning of the restrictive covenants, it abused its discretion by
fashioning injunctive relief that did not prohibit the Cofers from restoring the area above their
garage to its previous condition once attached to the Cofers' house, and did not require the
Cofers to "remove the microwave oven, the kitchen sink, the garbage disposal, the dishwasher,
the kitchen cabinets, and the 220 volt wiring in the walls," as well as to remove the separate
entrance to the area above their garage.4 Br. of Appellant at 24-25.
We disagree with the Brunses' assertions because paragraphs 1 and 3 of the Bainbridge
Landing restrictive covenants do not prohibit the construction of multiple living quarters within
the same house. The covenant provisions at issue state:
1. No lot shall be used except for residential purposes. No building shall be
erected or permitted on any lot other than one detached single family dwelling and
private garage for not more than three cars.
. . . .
3. No dwelling shall be constructed with a ground floor area of the main structure,
exclusive of one-story open porches and garages of less than 1000 square feet. No
prefabricated, modular or premanufactured homes shall be permitted on any lot.
No trailers or mobile homes shall be permitted on any lot.
CP at 101.
4 The Brunses' brief concludes without providing any reasoning or citations to legal authority
(apart from citations concerning our standard of review) that an ADU connected to the Cofers'
house would violate the restrictive covenants. In their brief, the Brunses state only that "the trial
court ordered only the minimal changes necessary to satisfy the city that the disputed space is no
longer a legal ADU [but this] is not appropriate . . . in light of the continuing violations of
paragraphs 1 and 3 of the covenants (one dwelling per lot and no dwelling under 1,000 square
feet)." Br. of Appellant at 23. But the Brunses do not elaborate on how the trial court's
interpretation of the covenants was contrary to law, and they do not cite any authority supporting
a different interpretation. Because the Brunses do not cite authoritysupporting their arguments,
we interpret the basis of their argument as well as possible from the context of their brief and oral
argument.
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No. 41062-1-II
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No. 41062-1-II
a. Standard of Review
In determining the meaning of a word or term in a restrictive covenant, we apply basic
rules of contract interpretation. Lane v. Wahl, 101 Wn. App. 878, 883, 6 P.3d 621 (2000). This
includes the "context" rule of Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990). Lane,
101 Wn. App. at 883. "An application of the Berg rule to restrictive covenants enables trial
courts to look to the surrounding circumstances of the original parties to determine the meaning
of specific words and terms used in the covenants." Hollis v. Garwall, Inc., 137 Wn.2d 683, 696,
974 P.2d 836 (1999). Because this dispute is among homeowners who did not draft the
restrictive covenants, "rules of strict construction against the grantor or in favor of the free use of
land are inapplicable." Riss v. Angel, 131 Wn.2d 612, 623, 934 P.2d 669 (1997).
We give words in a contract their ordinary, usual, and popular meaning unless the
agreement as a whole clearly demonstrates a contrary intent. Hearst Commc'ns, Inc. v. Seattle
Times Co., 154 Wn.2d 493, 504, 115 P.3d 262 (2005). Because the restrictive covenants at issue
here do not define the term "dwelling," we must determine the ordinary meaning of "dwelling" in
the context of the overall purpose of the covenants and the surrounding facts with regard to the
existence of multiple living quarters within the confines of a single residence on a Bainbridge
Landing lot.
b. "Dwelling"
The Brunses assert that the Cofers violate the restrictive covenants by having an additional
"dwelling" on their lot because the space above their garage contains a microwave oven, kitchen
sink, garbage disposal, dishwasher, kitchen cabinets, 220 volt wiring in the walls, and a separate
entrance. But we hold that the Brunses read the definition of "dwelling" under the applicable
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No. 41062-1-II
covenants too narrowly.
Under paragraph 1 of the restrictive covenants, a Bainbridge Landing homeowner is
limited to "one detached single family dwelling" on their lot. With the Cofers' house connected to
their garage, they do not exceed the limit of one single family dwelling, and this restrictive
covenant provision does not limit a homeowner from constructing multiple kitchens, bathrooms,
or bedrooms within their single family dwelling.
Under paragraph 3 of the restrictive covenants, a homeowner is prohibited from
constructing a dwelling "with a ground floor area of the main structure . . . of less than 1000
square feet." CP at 101. With the Cofers' house and garage connected, the main structure of
their dwelling has a ground floor area of over 2,000 square feet, well in excess of the 1,000
square feet minimum requirement.
Accordingly, because the Brunses do not provide any authority supporting their
arguments, the Brunses have failed to show that the trial court abused its discretion in fashioning
injunctive relief, and we affirm. Furthermore, to the extent the Brunses ask us to evaluate the trial
court's injunction with regard to the possibility that the Cofers will construct an ADU on their lot
at some point in the future in violation of the restrictive covenants, we do not give advisory
opinions on speculative facts and refuse to do so here. Clallam County v. Dry Creek Coal, 161
Wn. App. 366, 393, 255 P.3d 709 (2011). Thus, we hold that the Brunses have failed to show
that the terms of the trial court's injunction were arbitrary, based on untenable grounds, or were
manifestly unreasonable. Federal Way Family Physicians, 106 Wn.2d at 264.
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No. 41062-1-II
B. Monetary Damages
Next, the Brunses contend that the trial court erred by denying their request for monetary
damages based on the Cofers' violations of the Bainbridge Landing restrictive covenants.
Specifically, the Brunses assert that the trial court should have awarded them monetary damages
for the Brunses' breach of contract and unjust enrichment claims.
The Brunses assert that the trial court should have awarded them $32,250 based on the
total rent the Cofers collected, without deducting for the Cofers' expenses and, in addition, the
Brunses should be awarded $750 a month for the 20 months that the ADU sat vacant but was
available for rent. Because the Brunses have failed to establish that they have suffered any
economic damages resulting from the Cofers' violation of the restrictive covenants, these claims
fail.
To recover on a breach of contract claim, the Brunses had to prove that the Cofers
breached a contract, that the Brunses incurred actual economic damages as a result of the Cofers'
breach, and the amount of damages that they incurred. Columbia Park Golf Course, Inc. v. City
of Kennewick, 160 Wn. App. 66, 83, 248 P.3d 1067 (2011).
The purpose of awarding damages for breach of contract is neither to
penalize the defendant nor merely to return to the plaintiff that which he has
expended in reliance on the contract. It is, rather, to place the plaintiff, as nearly
as possible, in the position he would be in had the contract been performed.
Lincor Contractors, Ltd. v. Hyskell, 39 Wn. App. 317, 320-21, 692 P.2d 903 (1984) (quoting
Platts v. Arney, 50 Wn.2d 42, 46, 309 P.2d 372 (1957)).
Here, the Brunses did not allege or present any evidence at trial that they suffered
monetary damages as a result of the Cofers' violation of the restrictive covenants. Instead, it may
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No. 41062-1-II
be that the Brunses lost the full enjoyment of their property while the Cofers rented the detached
ADU. The trial court's injunction adequately protected the Brunses' interest in enforcing the
Bainbridge Landing restrictive covenants and, thus, it restored the Brunses to the full enjoyment
of their property. Accordingly, the trial court did not err in refusing to award monetary damages
to the Brunses under a breach of contract claim.
The trial court also did not err in refusing to award monetary damages under the Brunses'
unjust enrichment claim. To prove unjust enrichment, the Brunses were required to prove that (1)
the Cofers received a benefit, (2) the benefit was at the Brunses' expense, and (3) the
circumstances make it unjust for the Cofers to retain the benefit without payment. First Am. Title
Ins. Co. v. Liberty Capital Starpoint Equity Fund, LLC, 161 Wn. App. 474, 490, 254 P.3d 835
(2011). Although the Cofers received a monetary benefit from renting their ADU, "[t]he mere
fact that a defendant has received a benefit from the plaintiff is insufficient alone to justify
recovery. The doctrine of unjust enrichment applies only if the circumstances of the benefits
received or retained make it unjust for the defendant to keep the benefit without paying." First
Am., 161 Wn. App. at 490.
Here, the trial court's conclusion of law 22 indicated that the Brunses failed to prove that
the Cofers unjustly retained a benefit at the expense of the Brunses, stating:
The [Brunses] have not satisfied the requirements of a showing of unjust
enrichment, and that claim fails. The Brunses are not entitled to a monetary award
based on unjust enrichment measured by the rent of the ADU by two tenants. This
Court is not persuaded that there should be a payment from the [Cofers] to the
[Brunses] for what the [Brunses] determine and claim is an unjust enrichment.
There is no equitable basis for that rent money to be paid to the Brunses as
damages in this case.
CP at 212.
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No. 41062-1-II
In an action for unjust enrichment, a trial court "reviewing the complex factual matters
involved in the case, has tremendous discretion to fashion a remedy 'to do substantial justice to
the parties and put an end to the litigation.'" Young v. Young, 164 Wn.2d 477, 487-88, 191 P.3d
1258 (2008) (quoting Esmieu v. Hsieh, 92 Wn.2d 530, 535, 598 P.2d 1369 (1979)). Because the
Brunses failed to prove that they incurred any economic expenses that unjustly benefitted the
Cofers, and because the trial court's injunction adequately restored the Brunses to the full
enjoyment of their property, the trial court acted within its considerable discretion when it denied
the Brunses monetary damages under their unjust enrichment claim.5
C. Sanctions and Attorney Fees
Finally, the Brunses assert that the trial court erred by failing to impose sanctions against
the Cofers under the trial court's inherent power to control litigation, under CR 11, and under
RCW 4.84.185. We again disagree.
RCW 4.84.185 allows a trial court to award reasonable expenses, including attorney fees,
to a prevailing party where the non-prevailing party advanced a claim or defense that was
frivolous and without reasonable cause. The purpose of RCW 4.84.185 is "to discourage
frivolous lawsuits and to compensate the targets of frivolous lawsuits for their fees and costs
incurred in defending meritless cases." Timson v. Pierce County Fire Dist. No. 15, 136 Wn. App.
376, 386, 149 P.3d 427 (2006).
CR 11 similarly allows a trial court to sanction parties that present pleadings, motions, or
legal memorandum that are frivolous or brought in bad faith. A trial court also has inherent
5 The Brunses also assert that the trial court's findings of fact and conclusions of law do not
adequately explain its decision to deny monetary damages to them, contrary to CR 52. Because
the trial court entered findings of fact and conclusions of law sufficient for us to consider the
Brunses' issues on appeal, their assertion fails.
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No. 41062-1-II
power to sanction litigation conduct upon a finding of bad faith. State v. S.H., 102 Wn. App. 468,
475, 8 P.3d 1058 (2000).
The Brunses fail to articulate in this appeal any frivolous conduct or bad faith by the
Cofers to support the imposition of sanctions against the Cofers. Instead, the Brunses assert that
the trial court should have considered the Cofers' cost advantage in the litigation because they
received legal services from their son-in-law at no charge. The Brunses thus appear to argue that
the trial court should have used its authority to impose sanctions as a fee-shifting mechanism. But
absent any showing that the Cofers engaged in frivolous litigation or bad faith conduct, the trial
court lacked authority to sanction the Cofers under RCW 4.84.185, CR 11, or its inherent power
to control litigation. Accordingly, the trial court did not err by denying sanctions against the
Cofers.6
II. The Cofers' Cross-Appeal
A. Summary Judgment Order
The Cofers first contend that the trial court erred by ordering summary judgment in favor
of the Brunses when it found that the Cofers' detached ADU violated paragraphs 1, 2, and 7 of
the Bainbridge Landing restrictive covenants. We also disagree with the Cofers' assertions.
1. Standard of Review
We review an order of summary judgment de novo, performing the same inquiry as the
6 The Cofers also assert that the trial court failed to adequately explain its denial of sanctions
against the Cofers in its findings of fact and conclusions of law contrary to CR 52. But a trial
court is "not required to enter negative findings or findings that a certain fact has not been
established." Gen. Indus., Inc. v. Eriksson, 2 Wn. App. 228, 229, 467 P.2d 321 (1970).
Accordingly, the trial court's conclusions that "[t]he Brunses are not entitled to an award of
sanctions on any of their three asserted grounds" and "[t]he Court finds no basis for an award of
attorney fees to any party in this case, and therefore each party will bear its own attorney fees and
courts costs" are sufficient to comply with CR 52. CP at 212.
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No. 41062-1-II
trial court. Beaupre v. Pierce County, 161 Wn.2d 568, 571, 166 P.3d 712 (2007). We consider
the facts and all reasonable inferences from them "in the light most favorable to the nonmoving
party." Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Summary
judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law." CR
56(c).
2. Interpretation of Restrictive Covenants
The Cofers do not assert that genuine issues of material fact prevented the trial court's
summary judgment order finding their detached ADU violated the restrictive covenants. Instead,
the Cofers argue that the trial court erred as a matter of law when it interpreted the restrictive
covenants to prevent a detached ADU on their property. Specifically, the Cofers assert that,
under the Bainbridge Island zoning code definition of "ADU," their ADU was part of, not
detached from, their single family dwelling. The Cofers thus contend that the trial court erred
when it determined that their ADU "violate[d] Paragraph 1 of the Protective Covenants because it
exceeds the limitation of one detached single family dwelling and private garage." CP at 194.
Contrary to the Cofers' contention, the Bainbridge Island zoning code definition of an
ADU does not aid us in our interpretation of the Bainbridge Landing restrictive covenants
because the covenants do not use the term "ADU." Rather, because this is a disagreement
between homeowners who did not draft the covenants at issue, we give the words and terms of
the covenants their ordinary, usual, and popular meaning unless the covenants as a whole clearly
demonstrate a contrary intent. Hearst, 154 Wn.2d at 504; Riss, 131 Wn.2d at 622-23.
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Here, paragraph 1 of the restrictive covenants clearly prohibits a Bainbridge Landing
homeowner from constructing multiple dwellings on the same lot. The Bainbridge Island zoning
ordinances defined "[d]welling or dwelling unit" as "a building or portion of a building that
provides independent living facilities with provisions for sleeping, eating and sanitation." Former
City of Bainbridge Island Ordinance 92-08, § 18.06.310. And the Cofers' response to the
Brunses' partial summary judgment motion, relied on by the trial court in its partial summary
judgment order, admits that the Cofers' ADU contained a kitchen/dining room area,
bedroom/living room area, and a bathroom. The Cofers' ADU was thus a separate and
independent living facility with provisions for sleeping, eating, and sanitation. Accordingly, in the
context of the overall purpose of the covenants and the surrounding facts, the trial court did not
err when it interpreted the word "dwelling" to prohibit the Cofers' detached ADU as it existed
when the garage was not attached to the Cofers' house.
The Cofers also assign error to the portion of the trial court's summary judgment order
that found the Cofers' ADU in violation of paragraphs 3 and 7 of the restrictive covenants, but
they do not provide any argument in their brief supporting these assignments of error.
Accordingly, we do not address them.7 RAP 10.3(a)(6); Smith v. King, 106 Wn.2d 443, 451-52,
7 The Cofers argue in their reply brief that the trial court erred by finding their ADU in violation
of paragraph 7 of the restrictive covenants, but we do not consider arguments raised for the first
time in a reply brief. RAP 10.3(c). Although we decline to address the issue for lack of adequate
briefing, we discern no error in the trial court's partial summary judgment order finding the
Cofers' ADU, as it then existed, in violation of paragraphs 3 and 7 of the restrictive covenants. In
their response to the Brunses' partial summary judgment motion, the Cofers admitted that "the
square footage of the ADU [wa]s less than 1000 square feet." CP at 158. And paragraph 3 of
the restrictive covenants prohibits a dwelling with a ground floor area of less than 1,000 square
feet. The Cofers also admitted in their response to the Brunses' partial summary judgment motion
that their ADU, as it then existed, was not connected to their house and was being used as a rental
unit. And paragraph 7 of the restrictive covenants prohibits the use of an outbuilding as a
residence.
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No. 41062-1-II
722 P.2d 796 (1986) (reviewing court considers an assignment of error waived where it is not
argued in the brief and no legal authority bearing on the issue is cited).
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No. 41062-1-II
B. Affirmative Defenses
Next, the Cofers assert that the trial court erred in enforcing the covenants because the
Cofers raised several affirmative defenses that prevented enforcement of the restrictive covenants.
Although the Cofers' brief cites legal authority demonstrating that affirmative defenses were
available to defeat the Brunses' enforcement of the restrictive covenants, the Cofers do not
indicate how the trial court erred in rejecting those affirmative defenses. Here, the trial court's
findings of fact and conclusions of law indicate that the Cofers did not meet their burden in
proving their affirmative defenses.
Although the Cofers assign error to some of the findings of fact and conclusions of law
indicating that they have not met their burden of proving affirmative defenses, they do not argue
in their brief that substantial evidence does not support the findings of fact, nor do they argue that
the trial court committed an error of law in reaching its conclusions. Thus, it appears that the
Cofers are attempting to re-litigate issues the trial court decided. But an appeal from a trial
court's decision is not a forum for a new trial; rather, our review of the trial court's decision is
limited to determining whether substantial evidence supports the trial court's findings and whether
those findings support its legal conclusions. Panorama Vill. Homeowners Ass'n v. Golden Rule
Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000). Because the Cofers fail to articulate
any error in the trial court's decision to reject their affirmative defenses, we do not address the
issue.
C. Sanctions
Finally, the Cofers contend that the trial court erred by refusing to sanction the Brunses
under CR 11 and RCW 4.84.185 for bringing their claim with respect to the Cofers' roof and
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No. 41062-1-II
paint color without adequately investigating their claim. We disagree.
We leave the decision to impose sanctions under CR 11 and RCW 4.84.185 to the trial
court's sound discretion. Eller v. E. Sprague Motors & R.V.'s, Inc., 159 Wn. App. 180, 189,
191, 244 P.3d 447 (2010). We will not overturn a trial court's decision to impose or deny
sanctions absent an abuse of discretion. Eller, 159 Wn. App. at 189, 191. "A trial court abuses
its discretion when its order is manifestly unreasonable or based on untenable grounds or
reasons." In re Guardianship of Lasky, 54 Wn. App. 841, 854, 776 P.2d 695 (1989).
Here, the record indicates that the Brunses amended their complaint to include the
allegation that the Cofers failed to submit to the ACC their choice of roofing materials and
exterior paint based on information provided by Alice Tawresey, a member of the ACC. And the
trial court's unchallenged finding of fact 9 indicates that the Brunses were not aware that the
Cofers had submitted their choice of roofing material and exterior paint until the Cofers moved
for summary judgment on May 24, 2007, after which the Brunses withdrew that claim.
Accordingly, the trial court did not abuse its discretion in denying sanctions against the Brunses.
We affirm the trial court's decision below in all respects.
D. Attorney Fees on Appeal
The Cofers request attorney fees under RAP 18.1. But their brief does not provide any
argument supporting its request, nor does it provide any citing authority supporting its request.
"Argument and citation to authority are required . . . to advise us of the appropriate grounds for
an award of attorney fees as costs." Wilson Court Ltd. P'ship v. Tony Maroni's Inc., 134 Wn.2d
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No. 41062-1-II
692, 710 n. 4, 952 P.2d 590 (1998). Thus, we decline to award fees to the Cofers on appeal.
A majorityofthe panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
Van Deren, J.
We concur:
Worswick, A.C.J.
Quinn-Brintnall, J.
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