Florian Voss And Peiyuan Hu, Et Al., Appellants V. Hubert And Caroline Keene, Et Ano., Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FLORIAN VOSS and PEIYUAN HU, a
married couple,
TARINA TRUST, a trust formed under
the laws of the State of Washington,
ERIC HILD and KIM HILD, a married
couple,
STEPHEN R. DICKSON and JANET
DICKSON, a married couple,
BRETT LUMSDEN and JAIME
LUMSDEN, a married couple, and
RYAN TERRY and TRACI TERRY, a
married couple,
Appellants,
v.
HUBERT KEENE AND CAROLINE
KEENE, a married couple, and the
marital community comprised thereof,
Respondents.
No. 86898-5
DIVISION ONE
UNPUBLISHED OPINION
COBURN , J. — Hubert and Caroline Keene remodeled an existing one-
story home in a Bellevue neighborhood with restrictive covenants. The project
included adding a lofted “cathedral ceiling” to the roof of the existing dwelling.
After the construction of this new roofline was complete, Florian Voss, Peiyuan
Hu, the Tarina Trust, Eric and Kim Hild, Stephen and Janet Dickson, Brett and

No. 86898-5/2
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Jaime Lumsden, and Ryan and Traci Terry (collectively “the Neighbors”) filed a
lawsuit against the Keenes claiming that the roofline construction violated certain
restrictive covenants governing single-story dwellings and roof pitch height.
Under the restrictive covenants, a challenged construction is deemed to have
been fully complied with related covenants if no suit to enjoin the construction
has been commenced prior to completion thereof. Accordingly, we affirm the trial
court’s summary judgment dismissal of the Neighbors’ lawsuit against the
Keenes.
FACTS
The Keenes own property located on 123rd Ave SE in Bellevue. The
appellants in this matter own nearby properties also located on this street. All
properties have views or partial views of the Seattle and Bellevue skylines and
the Olympic Mountains.
These properties are located in a Woodridge neighborhood subject to the
same set of restrictive covenants.1 One of these covenants mandates that the
height of a detached single-family dwelling shall not “exceed one story in height
in case of non-basement house, or one story in height above basement and
private garage for not more than two cars.” The covenants do not otherwise
1 These covenants were initially executed in 1957 by the owner, a builder, of all
the real property in “Woodridge Division No. 2.” The document provides:
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 twenty-five
years from date these covenants are recorded, after which time said
covenants shall be automatically extended for successive periods of ten
years, unless an instrument signed by a majority of the then owners of
lots has been recorded, agreeing to change said covenants in whole or in
part.

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provide limitations as to what constitutes “one story in height.” Another covenant
restricts the roof pitch of all structures to no more than “4-½ feet in elevation for
each 12 feet of horizontal distance.” None of the covenants expressly address
protecting views.
Notably, an additional restrictive covenant applicable to these properties
sets forth as follows:
The Committee’s approval or disapproval as required in these
covenants shall be in writing. In event the committee or its
designated representative fails to approve or disapprove within
thirty days after plans have been submitted to it or in any event if no
suit to enjoin the construction has been commenced prior to
completion thereof, approval will not be required and the related
covenants shall be deemed to have been fully complied with.
(Emphasis added.)
“The Committee” in this covenant refers to the Architectural Control
Committee, which both parties agree is long defunct.
In September 2021, the Keenes purchased property located on 123rd Ave
SE, which included an existing one-story dwelling. Shortly thereafter, the Keenes
initiated a remodeling project to add a lofted “cathedral ceiling” to the roof of the
existing dwelling. The Keenes requested permits from the City of Bellevue and, in
May 2022, began the project.
In October 2022, the construction on the framing of the cathedral ceiling of
the dwelling was completed, establishing the new height and roof pitch of the
dwelling in question.

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As of June 1, 2023, the dwelling “was ready to be occupied and only
punch list items were left to complete,” including the Keenes’ occupation thereof,
the connection of certain utility services, and certain final inspections.
On June 15, the Neighbors filed a complaint in King County against the
Keenes seeking declaratory relief, injunctive relief, and damages for the Keenes’
alleged breach of the height- and story-related restrictive covenants. The
Neighbors’ complaint described the alleged construction, in pertinent part, as
follows:
22. Not long after framing went up, Plaintiffs realized that
Defendants were increasing the height of a substantial portion of the
existing house by several feet above the long-existing one-story
roofline.
23. Defendants’ new addition is in violation of the Protective
Covenants that encumber Defendants’ property.
(Emphasis added.)
In April 2024, the Keenes moved for summary judgment dismissal of the
Neighbors’ claims against them. The trial court granted their motion and
dismissed the Neighbors’ claims with prejudice.2
The Keenes timely appealed.
2 The Neighbors then filed motions for reconsideration and clarification of the
court’s order. The court denied the motion for reconsideration and granted the motion for
clarification. As discussed herein, summary judgment review is de novo and we affirm
the trial court’s grant of summary judgment on a basis other than that which the trial
court relied. We therefore need not consider the basis or reasoning articulated by the
trial court.
The Keenes later filed a motion for an award of costs in an amount of $371.08,
which the trial court granted. On appeal, the Neighbors do not challenge the trial court’s
award of costs to the Keenes.

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DISCUSSION
The Neighbors assert that the trial court erred by granting summary
judgment dismissal in favor of the Keenes. We disagree.
We review summary judgment orders de novo. Strauss v. Premera Blue
Cross, 194 Wn.2d 296, 300, 449 P.3d 640 (2019). Summary judgment is properly
granted when there are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. Neighbors v. King County, 15 Wn. App.
2d 71, 80, 479 P.3d 724 (2020); CR 56(c). We may affirm the trial court’s
decision on any basis supported by the record. Huff v. Wyman, 184 Wn.2d 643,
648, 361 P.3d 727 (2015).
Interpretation of a restrictive covenant presents a question of law, to which
we apply the rules of contract interpretation. Wilkinson v. Chiwawa Communities
Ass’n, 180 Wn.2d 241, 249, 327 P.3d 614 (2014) (citing Wimberly v. Caravello,
136 Wn. App. 327, 336, 149 P.3d 402 (2006)). The court’s objective in
interpreting restrictive covenants is to determine the intent of the drafters.
Wilkinson, 180 Wn.2d at 250; Riss v. Angel, 131 Wn.2d 612, 621, 934 P.2d 669
(1997). In discerning the intent of the drafters, we give language its plain and
ordinary meaning. Riss, 131 Wn.2d at 621. Summary judgment is proper if the
language has only one reasonable meaning. Wm. Dickson Co. v. Pierce County,
128 Wn. App. 488, 494, 116 P.3d 409 (2005) (citing Go2Net, Inc. v. C I Host,
Inc., 115 Wn. App. 73, 83, 60 P.3d 1245 (2003)).
The Neighbors assert that the trial court should not have granted summary
judgment to the Keenes. This is so, the Neighbors contend, because a genuine

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issue of material fact exists concerning whether the Keenes’ construction violated
the height- and story-related restrictive covenants set forth in their complaint. We
disagree.
As set forth above, the properties in question—including the Keenes’—are
governed by another restrictive covenant that states, in relevant part,
In event the committee or its designated representative fails
to approve or disapprove within thirty days after plans have been
submitted to it or in any event if no suit to enjoin the construction
has been commenced prior to completion thereof, approval will not
be required and the related covenants shall be deemed to have
been fully complied with.
(Emphasis added.)
In interpreting this restrictive covenant, our unpublished decision in
Lionetti v. Shriram Family Revocable Tr., No. 86007-1-I, slip op. (July 29, 2024)
(unpublished), https://www.courts.wa.gov/opinions/pdf/860071.pdf, is instructive.3
We were asked to interpret the exact same covenant in Lionetti. There, we stated
as follows:
Both the [Lionettis]’ and the Trust’s properties are governed
by a restrictive covenant that states, in relevant part:
In the event the committee, or its designated
representative fails to approve or disapprove within
3 Each party relies on our unpublished decision in Lionetti in its briefing on
appeal. GR 14.1(a) provides as follows:
Washington Court of Appeals. Unpublished opinions of the Court of
Appeals are those opinions not published in the Washington Appellate
Reports. Unpublished opinions of the Court of Appeals have no
precedential value and are not binding on any court. However,
unpublished opinions of the Court of Appeals filed on or after March 1,
2013, may be cited as nonbinding authorities, if identified as such by the
citing party, and may be accorded such persuasive value as the court
deems appropriate.
As discussed herein, because Lionetti involved an interpretation of a covenant
identical to the one now before us on appeal, we accord this decision significant
persuasive value.

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thirty days after plans have been submitted to it, or in
the event no suit to enjoin the construction has been
commenced prior to completion thereof, approval will
not be required and the related covenants shall be
deemed to have been fully complied with.
. . .
. . . [T]he intent of the covenant is clear from its plain
language. The covenant plainly states that if the committee has not
taken action within 30 days (which it did not) and if no suit was filed
before construction is completed (which it was not), then “the
related covenants shall be deemed to have been fully complied
with.” (Emphasis added.) This covenant provides a complete
defense to any suit filed after completion of a structure, even if that
structure would otherwise be noncompliant with the restrictive
covenants that require approval of the Architectural Control
Committee.
Lionetti, slip op. at 4-5. Given that, the questions before us are whether the
committee did not take action within 30 days after the Keenes’ commencement of
the construction in question and whether the Neighbors filed their complaint
regarding “the construction” prior to that construction’s completion. We answer
both questions in the negative.
First, as discussed above, the parties do not dispute that the committee in
question is long defunct. Therefore, the committee did not take action in
response to the construction in question in the 30-day time-period.
Second, there is no genuine issue of material fact as to whether the
challenged construction was completed before the Neighbors filed their lawsuit in
this matter. The challenged construction identified in the Neighbors’ complaint
was the Keenes’ addition to their dwelling of a cathedral ceiling that created a
roofline that blocked some of the Neighbors’ views. The parties do not
meaningfully dispute that, as of June 1, 2023—and perhaps as early as October

No. 86898-5/8
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2022—construction on the exterior structure constituting the cathedral ceiling had
been completed.
The Neighbors’ argument before the trial court and now on appeal instead
focuses on the date on which various other remodeling-related aspects were
alleged to have been in progress or the degree to which the “home” was not
completed at the time that the Neighbors filed their complaint. According to the
Neighbors, the record contained evidence that, as of the filing of their complaint
on June 15, 2023, certain utilities had not yet been connected to the dwelling,
certain final permits had not yet been issued, the Keenes not yet participated in a
final inspection and walkthrough of the dwelling, and the Keenes had not yet
moved into and occupied the dwelling.
The Neighbors miss the mark. The construction that was identified in their
complaint as being allegedly out of compliance with the height- and story-related
restrictive covenants was the Keenes’ addition of a cathedral ceiling to their
dwelling, not other unrelated projects immaterial to the allegations in their
complaint. Construction on the cathedral ceiling establishing the roofline in
question was completed as of June 1, 2023 or as early as October 2022. The
Neighbors filed their complaint on June 15, 2023, at least two weeks—and
possibly several months—after the challenged construction’s completion.
Therefore, by the plain language of the relevant covenant, the Keenes’ project
“shall be deemed to have been fully complied with” “the related covenants.”
Thus, the Neighbors cannot establish the existence of a genuine issue of
material fact as to whether the Keenes’ construction violated the restrictive

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covenants as set forth in their complaint. Accordingly, the trial court did not err by
granting the Keenes’ motion for summary judgment.4
Request for an Award of Costs
The Keenes request an award of costs on appeal pursuant to RAP 18.1.
This request is denied. An award of costs on appeal is governed by Title 14 of
the Rules of Appellate Procedure, not RAP 18.1. See RAP 14.2.
Nevertheless, following the Keenes’ compliance with the procedures and
requirements of Title 14, a commissioner of this court will enter an appropriate
order.
We affirm.
WE CONCUR:
4 The Neighbors’ remaining assignments of error regard the basis for the trial
court’s summary judgment ruling and whether the Neighbors could seek injunctive relief,
damages, or both if they prevailed on appeal. Given our disposition of this matter, we
need not address these remaining assignments of error.