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A court's primary objective in interpreting a restrictive covenant is to determine and to give effect to the intent of the parties.

In so doing, the language used in the covenant is given its ordinary and common meaning. An express reservation authorizing fewer than all property owners within a subdivision to adopt new restrictions on the use of privately owned property is invalid to the extent that it allows for the creation of new restrictions that differ in nature from those already in existence.

A servient estate owner is entitled to use land that is subject to an easement for any reasonable purpose that does not interfere with the proper enjoyment of the easement.

Owners of a subdivision lot sought a declaration that amendments to the subdivision's restrictive covenants adopted by a majority of the subdivision owners were invalid.

The amendments purported to relocate the common access road, part of which had been constructed outside of the recorded roadway easement, and to create a scenic easement within the original easement.

Holding that fewer than all of the subdivision owners could not expand the "road maintenance" covenant to relocate the access road, that the plaintiffs can make reasonable use of the easement area abutting their property, and that no party is entitled to attorney fees, the court affirms the judgment.

Paynter, and Kurt S. Stelma also appeals dismissal of his counterclaim. Both parties request attorney fees under the restrictive covenants. Holding that a majority of subdivision owners could not expand the road maintenance covenant to force realignment of the access road on a dissenting owner, we affirm.

But they do not appear to be represented by Stelma's appellate counsel, nor does the appellate record clarify their involvement, if any.

The restrictive covenants for this subdivision provide:. WHEREAS, it is necessary and desirable that a declaration be made as to the maintenance, repairs, and additional constructions involving said road, NOW, it is hereby stated and established that the owner of the lot described above shall share on an equal basis the expense and responsibility for the mainenance [sic], repairs and additional constructions on said existing road above-referenced.

It is further stated that maintenance shall include, but not be limited to, the removal of snow and other hazards or obstruction as well as graveling.

Such reservations, covenants restrictions, and agreements shall be binding and effective from the date hereof and shall continue indefinitely, or untill [sic] such time as the Skamania County Planning Department and majority vote of the then owners agree to change or alter them in full or in part.

Access to the subdivision is by Constant Drive, from Corner Road. The recorded plat depicts the Constant Drive easement as illustrated above.

But the mouth of this gravel access road actually intersects Corner Road further east, where Constant Drive cuts across the southwest portion of Lot 6.

The Constants knew about this discrepancy 16 years ago, before their subdivision plat was recorded. In June , during the preliminary platting process, the Skamania County Engineer wrote the Constants:.

For a Class IV private road category, for roads serving 6 to 10 lots, the requirements are for 60 feet of right-of-way, 20 feet cleared, 15 feet of driving surface consisting of 6 inches of base rock and 2 inches of top rock.

These standards are a minimum. With respect to the minimum standards, Constant Circle Drive appears to be adequate as far as width and depth of rock, however, we are concerned about the lack of drainage provisions.

The intersection alignment of Constant Circle Drive and Corner Road is not constructed as shown on the preliminary plat drawing, and appears to be outside the designated right-of-way.

Thirteen years later, in March , the Meresses purchased Lot 1. Constant Drive shall be centered within the sixty 60 foot roadway easement as shown on the Constant Oaks Subdivision Plat The remaining twenty 20 feet of roadway easement on each side of the twenty 20 gravel [sic] surfaced roadway width of Constant Drive shall be a scenic easement which shall landscaped [sic] and maintained so that the character of the scenic easement approximates the appearance of the natural surrounding environment.

The cost of the maintenance, repair and additional construction to Constant Drive to center the roadway, and surface twenty 20 feet of the roadway with gravel, along the entire length of Constant Drive, shall be shared equally by all lot owners within Constant Oaks Subdivision.

Following a bench trial, the court entered findings of fact and conclusions of law and invalidated the amended covenants.

The lot owners do not have had [sic] the power to amend the Covenant for Road Maintenance to provide for road relocation and a scenic easement.

The amendment here was a major change in the original covenant. It not only required the total abandonment of an existing road and its relocation, it also changed the easement from simply a 60 foot wide roadway easement to now what was designated as a 40 foot, 20 foot on either side of the roadway scenic easement, and the scenic easement put more restrictions on the easement than previously were stated.

The authority to amend restrictive covenants is restricted by the limitation that the amendment may not impose restrictions that are more restrictive or burdensome than those imposed by specific objective covenants.

The amendment in this case that was decided by majority of the Lot owners went beyond the original intent of the covenant.

That is, the original intent was for the construction, maintenance and repair of the Constant Road. The DeMonts argue that the trial court erred by allowing the Mehlenbachers to recover fees and costs from the Reeder action and not just the subsequent foreclosure action.

The Mehlenbachers, according to the DeMonts, waived any right to attorney fees and costs from the Reeder action because they did not ask for them at the time of summary judgment or in a post-judgment cost bill.

Finally, the DeMonts contend that the trial court erred in not calculating the fee awards according to the lodestar formula.

We first consider whether the order severing the foreclosure action bars any recovery for work done in the Reeder action. CR 21 governs the misjoinder and nonjoinder of parties and provides:.

Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.

Any claim against a party may be severed and proceeded with separately. Here, the trial court found that the Mehlenbachers' claims arose from different transactions and occurrences than the Reeders' claims, that there were no common issues of law or fact, and that the Mehlenbachers would be prejudiced unless the claims were severed.

Thus, the court ordered "[t]he claim asserted against DeMonts by the Mehlenbachers be severed from the claims asserted in the rest of the litigation and that the Mehlenbachers file a separate action to proceed with the severed claim.

And a severed action is, at least in some ways, a continuation of the original action. Thus, the statute of limitations does not bar a severed action if it was timely filed in the original action.

But the DeMonts argue that the Mehlenbachers waived any claim for fees and expenses related to the misrepresentation claim by not requesting fees in the Reeder action either at the time of the summary judgment or when a final order was entered in the Reeder action.

CR 54 b allows the trial court to enter a final appealable order when there are remaining unresolved issues, but it does not require it to do so.

No CR 54 b order was entered in the Reeder action. Hence, any fees and costs stemming from the misrepresentation claim could only be recovered once a final judgment was entered in the Reeder action.

But the Mehlenbachers were no longer parties in the Reeder action after their motion for summary judgment was granted. And the foreclosure action was not completed until after it was severed.

Thus, if the Mehlenbachers were required to seek an award of fees and costs in the Reeder action at the time of the summary judgment, the award would have been partial.

More importantly, the award would have been premature. Under the deed of trust, the Mehlenbachers are entitled to attorney fees only if successful in their foreclosure action.

When the Mehlenbachers filed the new action, the DeMonts raised a number of affirmative defenses. Until there was a final judgment in the foreclosure action, it was.

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment.

The findings may be made at the time of entry of judgment or thereafter on the court's own motion or on motion of any party.

In the absence of such findings, determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Thus, the Mehlenbachers could only claim their entire fees, even those incurred in defense of the misrepresentation claim, in the foreclosure action.

This is also consistent with treating the severed action as a continuation of the original action. Nevertheless, the Mehlenbachers can recover only those fees and costs in the misrepresentation claim that are "inextricably intertwined" with their foreclosure claim.

In CKP, the subcontractor sued to foreclose a materialman's lien and GRS, the prime contractor, counter-claimed for damages. All claims were tried together.

The attorney fees included fees for defending the counterclaims. On appeal, the court held that "the defense of the counterclaims was inextricably intertwined with CKP's establishment of its lien rights.

Thus, CKP was properly allowed fees incurred in the defense of counterclaims. Here, the DeMonts did not seek to rescind the property purchase based upon misrepresentation.

Rather, they sought damages for misrepresentation. Thus, it is at least conceivable that both the foreclosure and misrepresentation actions could have proceeded independently with each party obtaining a judgment against the other.

If so, the actions were not inextricably intertwined so that the foreclosure action could not proceed until resolution of the misrepresentation claim.

The record is insufficient for us to make this judgment. Accordingly, we remand for the trial court to determine the extent to which the actions were intertwined.

To the extent they were, the Mehlenbachers can recover reasonable attorney fees for defending the misrepresentation claim. Washington has adopted the lodestar method for determining the amount of an award for fees and costs.

The lodestar approach involves two steps. First, the award is determined by "multiplying a reasonable hourly rate by the number of hours reasonably expended on the matter.

Second, the award is adjusted "either upward or downward to reflect factors not already taken into consideration. Here, the Mehlenbachers submitted their attorney's declaration, detailing the hours worked, the type of work performed, the category of the attorney who performed the work, and the fees for non-lawyer services.

From this, the Mehlenbachers deducted any amounts for work on the Mehlenbachers' claims against all other parties in the suit.

At best, they argue, it "is a round number and a number shockingly close to the median between the parties' two original figures: In applying the lodestar method, the trial court's discretion is limited to examining the "contingent nature of success, and the quality of work performed.

Here, there was no contingency agreement and, thus, the trial court's discretion was limited to. This factor, however, has limited applicability because the quality of the work is reflected in the reasonable hourly rate.

The trial court may, however, reduce the number of allowable hours for "duplicat[ive] work or other unproductive time.

Neither the judgment, the hearing transcript, nor the letter from the trial court describing its intended judgment discuss how the number was calculated.

Under Absher, if the trial court substantially deviates from the amount requested by the Mehlenbachers, it must explain on the record how the amount was calculated.

The DeMonts argue that the trial court erred in awarding prejudgment interest on the promissory note because the terms of the note required zero percent interest.

If any of said installments are not so paid, the whole sum of both principal and interest shall become due and payable at once without further notice, at the option of the holder hereof.

The trial court, continues the DeMonts, may consider the REPSA because it did not merge into the promissory note or deed of trust; the DeMonts' obligations were not satisfied upon execution and delivery of the deed, rather there were continuing obligations.

And relying on Berg v. The Mehlenbachers, however, contend that the trial court properly refused to consider the REPSA because it merged into the note and deed of trust.

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When calculating an attorney fee award, a trial court should be guided by the lodestar method. The lodestar amount is determined by multiplying a reasonable hourly rate by the number of hours reasonably expended on the matter.

The lodestar amount may then be adjusted either upward or downward to reflect factors not already taken into consideration. In making an adjustment, a trial court is limited to examining the contingent nature of success and the quality of the work performed, although an analysis of the latter is limited by the fact that the quality of the work performed is reflected in the reasonable hourly rate.

For purposes of calculating an attorney fee award using the lodestar method, a trial court may reduce the number of allowable hours for duplicative work or other unproductive time.

A court awarding attorney fees in an amount substantially less than. An award of prejudgment interest is reviewed for an abuse of discretion.

Discretion is not abused if the award is not arbitrary, manifestly unreasonable, or based on untenable grounds. Action to foreclose a deed of trust.

The action originally arose as a counterclaim in an action for damage to real property caused by a landslide in which the purchasers of the property joined the sellers to claim that the sellers had misrepresented the property's stability.

The sellers' counterclaim to foreclose the deed of trust was severed from the litigation and filed as a separate action.

Holding that the trial court did not abuse its discretion in imposing a statutory interest rate in calculating prejudgment interest, that the plaintiffs were entitled to attorney fees and costs for defending the misrepresentation claim but only to the extent that the action was inextricably intertwined with the foreclosure action, and that the trial court must reconsider the award of attorney fees based on the lodestar method, the court affirms the judgment with respect to the prejudgment interest award, vacates the judgment with respect to attorney fees and costs, and remands the case for a determination of whether the misrepresentation claim was inextricably intertwined with the foreclosure action and for a reconsideration of the amount of attorney fees and costs to award.

DeLaat-Maher and Thomas L. Dickson of Law Offices of Thomas L. Dickson , for appellants. Helsdon and Justin D. The Mehlenbachers financed part of the purchase price with a promissory note secured by a deed of trust.

When a neighbor sued the DeMonts for landslide damage, the DeMonts joined the Mehlenbachers, alleging that they had misrepresented the property's stability.

The Mehlenbachers coun-terclaimed to foreclose the deed of trust and then moved successfully for summary judgment on the misrepresentation claim.

Several months later, the trial court severed the Mehlenbachers' foreclosure claim from the other litigation. On appeal, the DeMonts argue that the Mehlenbachers waived any claim for attorney fees in the misrepresentation claim by not asserting it in that action.

The DeMonts also argue that the award of fees and costs was excessive and that under the terms of the contracts, the Mehlenbachers were not entitled to interest.

The Mehlenbachers cross appeal, arguing that the trial court reduced their requested fee without using the lodestar method. We hold that the Mehlenbachers are entitled to fees and costs for defending the misrepresentation work but only to the extent necessary to obtain the foreclosure judgment.

We remand to the trial court to make such determination. Further, the trial court must reconsider its award of attorney fees based on the lodestar method.

We vacate the judgment for fees and costs and remand to the trial court to reconsider the amount of fees and costs.

We find no error in the court's prejudgment interest award. The note was secured by a deed of trust. The DeMonts answered and named the Mehlenbachers as third-party defendants, claiming they misrepresented the condition of the land when they sold it and withheld the geotechnical reports about the hazards of surface water runoff.

The Mehlenbachers joined other parties and counterclaimed to foreclose the deed of trust. The trial court granted summary judgment to the Mehlenbachers on the DeMonts' misrepresentation action.

A few months later, the trial court severed the Mehlenbachers' foreclosure claim from the remaining claims in the Reeder action. The Mehlenbachers refiled their claim under a new cause number and eventually prevailed against the DeMonts' affirmative defenses.

The trial court then awarded the Mehlenbachers attorney fees and costs in the foreclosure action. This included fees for some of the work done in the Reeder action for defending.

To defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee, and to pay all costs and expenses, including cost of title search and attorney's fees in a reasonable amount, in any such action or proceeding, and in any suit brought by Beneficiary to foreclose this Deed of Trust.

The DeMonts appeal the award of attorney fees and costs and the award of interest; the Mehlenbachers cross appeal on the amount of fees and costs awarded.

A trial court's decision to award fees and costs is a question of law and reviewed to determine if the relevant statute or contract provides for an award of fees.

Review denied and review granted: When subsequent history results in an opinion such as aff'd , rev'd , vacated , overruled by , and abrogated by , use a full case citation.

Do not use " superseded by statute " or " superseded by constitutional amendment " subsequent history. When citing to a current or former, official or unofficial, version of a statute that is published by a private publisher, do not add the name of the publisher and year of publication, e.

Do not add the year in parentheses after a citation to a presently effective version of a statute or code. Do not add "Wash.

Do not add the year in parentheses after a citation to a presently effective version of a local code or ordinance.

Exception to Bluebook table T1. Cite United States Supreme Court cases as follows: For Pennsylvania Superior Court cases, omit the public domain citation after the A.

Washington State Administrative Office of the Courts. A Uniform System of Citation is the basic citation resource for Washington appellate court opinions except as noted below.

Thirteen years later, in March , the Meresses purchased Lot 1. Constant Drive shall be centered within the sixty 60 foot roadway easement as shown on the Constant Oaks Subdivision Plat The remaining twenty 20 feet of roadway easement on each side of the twenty 20 gravel [sic] surfaced roadway width of Constant Drive shall be a scenic easement which shall landscaped [sic] and maintained so that the character of the scenic easement approximates the appearance of the natural surrounding environment.

The cost of the maintenance, repair and additional construction to Constant Drive to center the roadway, and surface twenty 20 feet of the roadway with gravel, along the entire length of Constant Drive, shall be shared equally by all lot owners within Constant Oaks Subdivision.

Following a bench trial, the court entered findings of fact and conclusions of law and invalidated the amended covenants. The lot owners do not have had [sic] the power to amend the Covenant for Road Maintenance to provide for road relocation and a scenic easement.

The amendment here was a major change in the original covenant. It not only required the total abandonment of an existing road and its relocation, it also changed the easement from simply a 60 foot wide roadway easement to now what was designated as a 40 foot, 20 foot on either side of the roadway scenic easement, and the scenic easement put more restrictions on the easement than previously were stated.

The authority to amend restrictive covenants is restricted by the limitation that the amendment may not impose restrictions that are more restrictive or burdensome than those imposed by specific objective covenants.

The amendment in this case that was decided by majority of the Lot owners went beyond the original intent of the covenant.

That is, the original intent was for the construction, maintenance and repair of the Constant Road. In this case, there is, as I said, a relocation, a rebuilding, also a reconfiguration, reestablishment of a different type of easement which is certainly more restrictive than the original roadway easement and it is also more burdensome on the lot owners.

Therefore, their disagreement is not before us. Although the trial court failed to anticipate and apply this change in the caselaw, its invalidation of the amendments was, nevertheless, correct.

At oral argument, both parties asked us to clarify the respective rights of the lot owners. At issue is whether Stelma, as the owner of a majority of the lots, can override the minority owner, Meresse, to impose a major change-relocating the access road-by calling it "road maintenance," "construction," or "repair," which do not require unanimous approval.

Stelma contends that the power to relocate Constant Drive and to create a scenic easement is given in 1 the original restrictive covenants, which provide in part:.

Such reservations, covenants restrictions, and agreements shall be binding and effective from the date hereof and shall. Although emphasizing different perspectives, both parties cite Shafer v.

In assessing what constitutes "a reasonable manner consistent with the general plan of the development," we look to the language of the covenants, their apparent import, and the surrounding facts.

In Shafer, the existing covenants were extended to a restriction of a similar nature-. The new covenants adopted by the majority, among other things, prohibited the storage of junk vehicles on individual properties for more than six months.

These provisions were adopted for the common good of the subdivision when one or two owners were acting to the detriment of all.

Such is not the case here.

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