KORSMO, C.J.
¶ 1 The Riverview Community Group, a collection of adjoining and neighboring property owners acting as a nonprofit corporation, sued its property's developers for closing the golf course that had been the center of their development and sought to have the golf course reopened. The trial court directed that all of the area's individual landowners be joined as necessary parties to the litigation under CR 19. The court also granted summary judgment and dismissed the action on the basis that equitable servitudes were not available in Washington unless created in writing. We reverse the court's CR 19 ruling, but affirm the summary judgment order.
¶ 2 This litigation is centered on a 540-acre development in northern Lincoln County near the confluence of the Spokane River and Lake Roosevelt. The property was developed by two married couples, George and Sheila
¶ 3 A 9-hole golf course opened on the development in 1994; four years later the course expanded to 18 holes. The golf course eventually would include a pro shop, bar, lounge, and motel. In September 1994, after the golf course had opened, James Linville purchased a lot from the Spencers and Livingstons across from the course. In December 1994, the Spencers and Livingstons created Deer Meadows, Inc. (DMI). In February 1995 the partnership's assets were transferred to DMI. Nonetheless, the partnership recorded Deer Meadows Plat 3 in July 1995. This plat map was the only one that noted the presence of a golf course. In September 1995, DMI quitclaimed its assets back to the partnership, which promptly quitclaimed the real estate contracts to Charles Spencer individually, DMI dissolved in December 1995.
¶ 4 Charles Spencer created Deer Meadows Golf Inc. (DMG) in November 1995. At some later time DMG obtained ownership of the golf course. In March 1996 Mr. Spencer
¶ 5 Spencer and Livingston formed S.O.S., LLC. (SOS), in February 1997, to develop the nearby Deer Heights area. SOS recorded Deer Heights Plat 1 in September 1998. SOS would file Deer Heights Plat 2 in 2000 and Deer Heights Plat 3 in 2003. The general layout of the development by this time had the Deer Meadows properties adjoining and nearly surrounding the golf course, with the Deer Heights lots north of the course.
¶ 6 Ken Sweeney purchased a lot in Deer Heights from SOS in May 1999. The following year he would swap the lot with Charles Spencer for a lot on the 13th hole of the golf course. In August 1999, James Kerlee purchased a lot abutting the golf course from the Livingstons.
¶ 7 Charles Spencer passed away January 22, 2005. Mr. Livingston took control of DMG later that year. In May 2006 Mr. Livingston sold a lot on the 8th hole to Mark Jensen.
¶ 8 The golf course closed in 2009 and its equipment was sold the following year. DMG became inactive in March 2010. The Riverview Community Group was formed in September 2010 as a nonprofit corporation. As many as 100 of the nearly 500 area property owners joined Riverview, including the five property owners noted previously: James Linville, Howard Walker, Ken Sweeney, James Kerlee, and Mark Jensen. Each of the five alleged that the property had been marketed to them as a "golf course community" and presented promotional materials to that effect which they had received.
¶ 9 Riverview filed suit in its own name in March 2011, seeking declaratory and injunctive relief, as well as equitable relief in the form of recognition of equitable servitudes that required restoration of the golf course. The named defendants included George and Sheila Livingston, the Spencer & Livingston partnership, and SOS, along with some of the defunct earlier corporations. The Livingstons and the partnership (Livingstons) were represented by different counsel than SOS.
¶ 10 The Livingstons moved for dismissal pursuant to CR 12(b)(7), arguing that Riverview had not joined necessary parties under CR 19 and that Riverview itself had no interest in the litigation since it was formed after the golf course had been shuttered. The trial court agreed with the motion and ruled that the individual Deer Meadows property owners were necessary parties. It ordered Riverview to join the owners as parties or receive assignments from them within a reasonable period of time. Clerk's Papers (CP) at 246.
¶ 11 SOS moved for summary judgment and the Livingstons subsequently joined the motion. SOS argued that equitable servitudes were not available in Washington unless they had been created in a written document. Remarking that existing case law supported the argument that implied equitable servitudes did not exist in Washington, the court granted the motion. A written order dismissing the case as to all defendants was entered.
¶ 12 Riverview promptly appealed to this court,
¶ 13 Riverview argues in this appeal that it has standing, there is no need to add the
¶ 14 Although the issue was not argued below, Riverview initially argues that it has organizational standing to pursue this action in accordance with International Association of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 45 P.3d 186 (2002). It also argues in rebuttal that the trial court erred in ordering the addition of individual landowners as parties. Respondents contend that Riverview lacks standing, is not a real party in interest, and that the landowners were CR 19 indispensable parties who were not joined. These issues, although analytically distinct, are intertwined; we will address the CR 17 and standing issues together before addressing the CR 19 argument.
¶ 15 CR 17(a) provides in part:
¶ 16 The concepts of standing and CR 17(a) real party in interest are often interchanged by our courts. Philip A. Trautman, Joinder of Claims and Parties in Washington, 14 GONZ. L.REV. 103, 109 (1978). Standing refers to the demonstrated existence of "an injury to a legally protected right."
¶ 17 The essence of this case is promissory estoppel — the alleged breaking of a promise, made via promotional brochures and express statements by the developers, to maintain a golf course. The persons who purchased land in the development in reliance upon that promise are the ones who have been injured.
¶ 18 Riverview argues that it is an appropriately incorporated nonprofit organization in accordance with chapter 24.03 RCW interested in the continuation of the golf course at Deer Meadows. One of the powers of a nonprofit organization is the ability to sue and be sued. RCW 24.03.035(2). Because some of its individual members have claims against the defendants and desire to litigate those claims through Riverview, the group claims organizational standing under the decision in Firefighters. We agree.
¶ 19 In Firefighters, a union embroiled in a dispute over return of social security payments made on behalf of its members sought to have the employer refund to each union member the matching payments made on the member's behalf. This court concluded that standing existed for the union to seek the refunds for its individual members. 146 Wash.2d at 210-11, 45 P.3d 186. The Washington Supreme Court agreed.
Id. at 213-14, 45 P.3d 186.
¶ 20 The first two criteria satisfy the "case and controversy" requirements of the federal constitution. Id. at 215, 45 P.3d 186. The third criterion, the necessary participation of the organization's individual members, is judicially imposed and exists for the convenience of the courts. Id. The third criterion is typically the basis for courts declining to permit organizations to assert damages on behalf of their members since normally those members would have to be actively involved in establishing their individual damages. Id. at 214-15, 45 P.3d 186. Thus, where the individual members have to participate, there frequently is no need for an association to do so.
¶ 21 The Firefighters court decided that there are instances where lack of individual participation should not prevent organizational standing "because the amount of monetary damages sought on behalf of those members is certain, easily ascertainable, and within the knowledge of the defendant." Id. at 215-16, 45 P.3d 186. Because those standards were met in Firefighters, individual participation was not necessary and the union had standing to assert the damages owed its members. Id. at 217, 45 P.3d 186.
¶ 22 The Washington Supreme Court reaffirmed Firefighters in Five Corners Family Farmers v. State, 173 Wn.2d 296, 268 P.3d 892 (2011). There a nearby water rights holder (Mr. Collin), two local nonprofit organizations, and the Sierra Club challenged the transfer of a senior water right to a large cattle feedlot owner, seeking both declaratory and injunctive relief. Id. at 300-01, 268 P.3d 892. The court unanimously
Id. at 304, 268 P.3d 892.
¶ 23 In light of the broad reading of the Firefighters test in Five Corners, we agree that Riverview has standing here. Five of its members filed declarations establishing their apparent standing. That is four members more than the one person who was sufficient to give organizational standing to two groups in Five Corners. Riverview has standing to pursue this action.
¶ 24 Those same facts defeat the CR 17 real party in interest argument. The rule expressly permits a reasonable time "for ratification of commencement of the action by" a real party in interest. CR 17(a). That was done here. The five Riverview members with standing have all declared their desire that the case by conducted by Riverview. That is sufficient to establish "ratification of commencement of the action." The CR 17 objection is without merit.
¶ 25 The trial court's ruling required joinder of the "Deer Meadows landowners" as parties. It is unclear if the ruling means all
¶ 26 CR 19 addresses joinder of parties. CR 19(a) describes those parties who should be joined, while CR 19(b) discusses what courts must do if it is not possible to join parties. Those rules state:
¶ 27 Although a trial court's CR 19 decision is reviewed for abuse of discretion, dismissal under CR 12(b)(7) is a "drastic remedy" that "should be employed sparingly." Gildon v. Simon Prop. Group, Inc., 158 Wn.2d 483, 494, 145 P.3d 1196 (2006). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). An indispensable party is one who is both necessary to the litigation in the sense that relief cannot be afforded without the party and it would be inequitable to proceed without the absent party. Auto. United Trades Org. v. State, 175 Wn.2d 214, 221-23, 235, 285 P.3d 52 (2012) (AUTO). A plaintiff is not required to join additional parties whose presence would be permissive rather than essential to the litigation. Jensen v. Arntzen, 67 Wn.2d 202, 207, 406 P.2d 954 (1965) (undisclosed principal was not an indispensable party in suit against his agent).
¶ 28 CR 19(a) identifies two classes of parties that should be joined if feasible. The first class is a party whose presence is necessary to afford the existing parties complete relief. CR 19(a)(1). The other class is a party who "claims an interest" in the proceeding and either that party's interest might be adversely affected by the litigation or an existing party could be subject to inconsistent judgments if the party is not added. CR 19(a)(2).
¶ 29 The trial court's memorandum decision focused on two factors; (1) the court could not provide relief to the real parties in interest, the individual landowners, since Riverview had no interest in the land; and (2) the defendants might be subject to multiple suits and inconsistent rulings if the other landowners were not parties. CP at 212. Neither concern makes the individual landowners indispensable parties.
¶ 31 The second factor analyzed by the trial court concerned whether the respondents would be denied the res judicata benefits of a successful defense of this case if the absent landowners were not added. CR 19(a)(2)(B). That is not the case for the Riverview members. Being in privity with the organization, they are bound by any ruling in the case. Stevens County v. Futurewise, 146 Wn.App. 493, 503-04, 192 P.3d 1 (2008).
¶ 32 The nonmember landowners present a different issue. While respondents would understandably desire to have every potential plaintiff joined in one case, they have identified no authority that requires all potential parties be joined. In cases of multiple potential claimants, there is always a risk that a defendant will face multiple lawsuits. That possibility does not require that every potential plaintiff be joined in one action, but is simply inherent in situations where multiple people have been damaged. A plaintiff is not deprived of his day in court just because another potentially aggrieved person decides not to pursue litigation.
¶ 33 It also is highly unlikely that every nonmember landowner in Deer Meadows and Deer Heights has the same interest as Riverview's members in the continued existence of the golf course. The development is located in a desirable vacation area and it is very likely that there were as many boaters and outdoor recreational enthusiasts in the development who were attracted by its proximity to Lake Roosevelt as there were people who sought a golf community. Even among the other golf enthusiasts in the community, there likely are some who did not receive express promises that the golf course would remain open. There also may be other landowners who believe a promise was breached, but are more interested in recovering damages than seeking return of the golf course.
¶ 34 In many respects, this case is similar to Crosby v. Spokane County, 137 Wn.2d 296, 971 P.2d 32 (1999). There landowners sought to challenge a zoning change request for adjoining property and were permitted to intervene at the administrative level. The
Id. at 308, 971 P.2d 32.
¶ 35 Similarly here, the other Deer Meadows and Deer Heights property owners may be affected in a positive manner by the outcome of the Riverview litigation. However, they are not essential to that litigation because their land is not the land in question — the golf course land is at issue, not that of the neighbors. Whether or not all of those neighbors have equitable rights that might accrue to their land, they are not essential parties to this litigation. The trial court lacked tenable grounds for ruling otherwise.
¶ 36 The court erred in directing the joinder of all the neighboring property owners.
¶ 37 The trial court dismissed this action at summary judgment on the basis that implied equitable servitudes are not an available equitable remedy in Washington. We disagree, but nonetheless affirm.
¶ 38 Well settled standards govern our review of summary judgment rulings. An appellate court reviews a summary judgment de novo; our inquiry is the same as the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn from them, are viewed in the light most favorable to the nonmoving party. Id. If there is no genuine issue of material fact, summary judgment will be granted if the moving party is entitled to judgment as a matter of law. Id.; Trimble v. Wash. State Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000).
¶ 39 Respondents argue that implied servitudes are contrary to existing Washington law and that the trial court correctly dismissed this action as a matter of law. Riverview contends that the issue is open and urges us to adopt the position of Restatement (Third) of Property (2000),
¶ 40 "A servitude is a legal devise that creates a right or obligation that runs with the land." Lake Limerick Country Club v. Hunt Mfg. Homes, Inc., 120 Wn.App. 246, 253, 84 P.3d 295 (2004) (following Restatement; footnote omitted). Our statute of frauds requires contracts for the sale or lease of real property to be in writing. Pardee v. Jolly, 163 Wn.2d 558, 566-67, 182 P.3d 967 (2008) (sales agreement); Powers v. Hastings, 93 Wn.2d 709, 711 n. 1, 612 P.2d 371 (1980) (lease). Washington's codification of that requirement is found in RCW 64.04.010, which states in relevant part: "Every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed." (Emphasis added). The broad language of the statute, reaching any encumbrance, also applies to easements and
¶ 41 Respondents, accordingly, argue that there is no writing evidencing the intent to maintain the golf course for the benefit of the neighboring property owners and that without such a writing, there can be no equitable restriction on their land. They rely upon the test regularly stated in our case law:
Hollis v. Garwall, Inc., 137 Wn.2d 683, 691, 974 P.2d 836 (1999); accord, 1515-1519 Lakeview Blvd. Condo. Ass'n v. Apartment Sales Corp., 146 Wn.2d 194, 203, 43 P.3d 1233 (2002) (lakeview).
¶ 42 Riverview, in contrast, relies upon an example from the current Restatement on the creation of a servitude by a golf course developer:
RESTATEMENT § 2.9 Illustration No. 10.
¶ 43 Hollis notes that there "are essentially two kinds of covenants that run with the land — real covenants and equitable covenants." 137 Wash.2d at 691, 974 P.2d 836. However, "Washington cases have generally not distinguished between the two kinds of covenants." Id. The term covenant is used modernly to describe "`promises relating to real property that are created in conveyances or other instruments.'" Id. at 690-91, 974 P.2d 836 (quoting 9 RICHARD R. POWELL, POWELL ON REAL PROPERTY § 60.01[2] ).
¶ 44 The conflation of real and equitable covenants in Washington normally has been of no concern because the issue in most reported cases typically has been interpretation of whether or not the covenant attached to the land. E.g., Lakeview, 146 Wn.2d 194, 43 P.3d 1233; Metzner v. Wojdyla, 125 Wn.2d 445, 886 P.2d 154 (1994); Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 854 P.2d 1072 (1993); Rodruck v. Sand Point Maint. Comm'n, 48 Wn.2d 565, 295 P.2d 714 (1956); Lake Limerick, 120 Wn.App. 246, 84 P.3d 295; Mountain Park Homeowners Ass'n v. Tydings, 72 Wn.App. 139, 864 P.2d 392 (1993), aff'd, 125 Wn.2d 337, 883 P.2d 1383 (1994);
¶ 45 This case, however, raises the question of whether a covenant running with the golf course property has been created because of behavior rather than by mutual intent expressed in writing. Courts acting in equity have broad remedial authority to effect appropriate relief, even in cases involving real property. Proctor v. Huntington, 169 Wn.2d 491, 500-03, 238 P.3d 1117 (2010).
¶ 46 Our early case involving an equitable covenant is Johnson v. Mt. Baker Park Presbyterian Church, 113 Wn. 458, 194 P. 536 (1920). There a developer in the Mt. Baker region of Seattle had platted, mapped, advertised, and sold lots in the development of an upscale residential neighborhood in which nothing could or would be built but houses. Id. at 459-61, 194 P. 536. Nearly all of the deeds
¶ 47 The church argued that it was not bound by the same restrictive covenants as the other property owners because the statute of frauds required all use restrictions on real property to be in writing. Id. The Supreme Court partially agreed with that argument, saying that if the plaintiff was seeking relief under the claimed property interest or encumbrance upon the land, then the statute of frauds would require a written covenant. Id. at 464, 194 P. 536. But, when the relief sought arises out of equity then the statute of frauds does not apply as it is "immaterial whether they have any interest or easement in appellant's property." Id. at 464-65, 194 P. 536. The Court went on to say:
Id. at 466, 194 P. 536.
¶ 48 Although old, Johnson's holding has never been questioned. Professor Stoebuck calls it the leading case in Washington on implied restrictions, with "an express holding that an implied covenant in a subdivision need not comply with the Statute of Frauds." 17 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 3.11 (2d ed.2004). Thus, to the extent that the trial court concluded that Washington did not recognize equitable covenants, we disagree. The remaining question, however, is whether Riverview established that it was entitled to an equitable covenant here.
¶ 49 Respondents argue that Johnson did involve a written restriction, unlike this case, and therefore is inapposite here where there is no written scheme creating restrictions on the land in the development. While this argument undercuts the trial court's broad equitable powers to fashion relief, it is consistent with the language of our statute of frauds. Nonetheless, we need not address the issue further because we
¶ 50 Washington courts operating in equity need not enforce legal rights when doing so would be inequitable. Proctor, 169 Wash.2d at 500-01, 238 P.3d 1117; Arnold, 75 Wn.2d at 152-53; Holmes Harbor Water Co. v. Page, 8 Wn.App. 600, 605, 508 P.2d 628 (1973). Here, Riverview seeks to have the defendants restore the golf course and its amenities and then permanently operate them. It cites several cases where golf course owners have been directed to maintain community courses. The closest example comes from Oregon. Mountain High Homeowners Ass'n v. J.L. Ward Co., 228 Or.App. 424, 209 P.3d 347 (2009).
¶ 51 There a housing development was built adjacent to an 18-hole golf course and marketed as a golf course community. 228 Or.App. at 427-28, 209 P.3d 347. The golf course was not heavily used and lost money for years. Id. at 428-29, 209 P.3d 347. Irrigation problems developed and the golf course suffered, ultimately not operating for two seasons. Id. The developer attempted to sell the golf course property, along with adjacent undeveloped land, to another developer and included a restriction that there would be a 9-hole golf course as part of the new development. Id. at 429-30, 209 P.3d 347. The homeowners group sued to maintain the existing golf course. The trial court found that the golf course was subject to an equitable servitude and enjoined the sale of the course property. The developer was required to maintain the original 9-hole course for a period of 15 years. Id. at 430-31, 209 P.3d 347. The Oregon Court of Appeals affirmed, ruling that the developer's representations justified the equitable servitude by estoppel. Id. at 437-38, 209 P.3d 347. The remedy was also affirmed, with the court concluding that it was within the scope of the court's equitable powers and consistent with the intent of the original developer to maintain a golf course in the immediate area. Id. at 438-40, 209 P.3d 347.
¶ 52 There are many factual similarities between Mountain High and this case. As there, the allegations here are that the developers promoted a "golf course community" and allegedly told some of the property owners that the course would continue even though there was no written assurance. However, there are also some important differences. Unlike Mountain High, Riverview does not represent all of the Deer Meadows community and it is unclear how many of the remaining property owners might have a claim for relief. Also unlike this case, the Mountain High developer desired to continue to have a golf course at the community, even if not in the same location. In fashioning its remedy, the court ordered that only part of the original course be maintained and only for a 15-year period. Because of that limited duration, the remedy effectively applied only against the original developer and only for the benefit of the current property owners rather than for and against their successors in interest.
¶ 53 Here, Riverview is seeking a permanent servitude that would require operation of the golf course and its attendant amenities in perpetuity. The humans who own both the golf course and the homes represented by Riverview will pass away, but the obligation would run forever. It is irrational to require the defendants to rebuild and operate a failing business, particularly when the property owners could have pursued damages awards to compensate them for the diminished property values they may have suffered from the closure of the course.
¶ 54 The judgment of the trial court is affirmed.
WE CONCUR: SWEENEY and KULIK, JJ.