Date: 10-29-2012

Case Style: Bellevue Pacific Center Limited Partnership v. Bellevue Pacific Tower Condominium Owners

Case Number: 67267-3

Judge: Cox

Court: Washington Court of Appeals on appeal from the Superior Court, King County

Plaintiff's Attorney: Henry Cowles Jameson

Defendant's Attorney: Christopher Ian Brain, Mary B Reiten and Shannon Maureen Whitemore

Description: At issue in this case is the right to control nine parking spaces

located in the courtyard at the main entrance of the Bellevue Pacific Tower

Condominium. The trial court properly granted partial summary judgment to

Bellevue Pacific Center Limited Partnership (LP), dismissing with prejudice the

counterclaims of the Bellevue Pacific Tower Condominium Owners Association
(Tower COA).1 And the court properly ruled that Tower COA could not present

its affirmative defenses at trial. Finally, the trial court did not abuse its discretion

in awarding the amount of attorney fees to LP against Tower COA that it

determined at the conclusion of trial. We affirm.

1 We adopt the naming conventions of the parties.

No. 67267-3-I/2

Bellevue Pacific Tower Condominium is a residential condominium. It is

part of a mixed-use condominium known as Bellevue Pacific Center

Condominium. The latter condominium is comprised of a Residential Unit

(Bellevue Pacific Tower Condominium), a Commercial Unit, and a Garage Unit.

LP is the developer of these properties and the declarant for each of the

declarations establishing Bellevue Pacific Center Condominium and Bellevue

Pacific Tower Condominium. LP recorded these two declarations in 1995. They

bear recording numbers that are very close to each other.

The declaration for Bellevue Pacific Tower (the "Tower Declaration") and

the declaration for Bellevue Pacific Center (the "Center Declaration") both

contain terms and conditions for parking. It is undisputed that there are a total of

492 parking spaces within Bellevue Pacific Center, 483 of which are enclosed in

the parking garage and nine of which are in the exposed courtyard at the main

entrance of Bellevue Pacific Tower. Of the above totals, there are 131 parking

spaces for Bellevue Pacific Tower, 122 of which are enclosed. The remaining

nine are in the courtyard at the main entrance. There are 171 individual

residential units within Bellevue Pacific Tower.

In April 2000, Tower COA executed a lease with LP's agent, renting four
of the nine courtyard parking spaces for use by the Tower residents.2 The lease

was for a term of one year and was automatically renewable on a month to
month basis thereafter.3 Tower COA paid LP rent on these four stalls from April

2 Clerk's Papers at 288, 850.
3 Id.

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No. 67267-3-I/3

2000 through November 2007.4 It failed to pay rent thereafter.

Two individual residential condominium unit owners also rented two more
of the nine courtyard stalls from LP's agent from 2000 to 2005.5 These were

also leased on a month to month basis.

In 2001, Tower COA sued LP over disputes arising from conflicting

interpretations of the terms and conditions of the Tower Declaration and the

Center Declaration. In September 2003, the parties settled that litigation. They

executed a Memorandum of Understanding Regarding Settlement dated

September 16, 2003, as well as other documents to memorialize their

agreement. Among other things, the parties agreed in the memorandum to

release each other "from any and all claims which have been or could have
been asserted in the [litigation]."6

In 2008, Tower COA wrote to LP and claimed that it had the right to

control all nine of the courtyard parking spaces at the main entrance of Bellevue

Pacific Tower. LP disagreed. Each party then took a series of steps to assert

their respective claims to the courtyard parking spaces.

In 2009, LP commenced this action against Tower COA to obtain a

declaration of its right to control the nine courtyard parking spaces and to eject

Tower COA from them. LP also sought damages and attorney fees both under

the terms of the month to month lease and under the Washington Condominium

Act. Tower COA asserted affirmative defenses and counterclaims, which we

4 Id. at 850.
5 Id. at 335, 850.
6 Id. at 348 (emphasis added).

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No. 67267-3-I/4

discuss in more detail later in this opinion. LP asserted the release in the 2003

settlement agreement as a bar to Tower COA's affirmative defenses and

counterclaims.

The trial court granted LP's partial summary judgment motion and

dismissed Tower COA's counterclaims with prejudice. Tower COA moved for

reconsideration, and the court denied this motion.

After a bench trial, the trial court awarded LP damages against Tower

COA for unpaid rent for the courtyard parking spaces that it rented. The court

also awarded attorney fees to LP based on both the lease Tower COA had

signed and RCW 64.34.455.

This appeal followed.

SETTLEMENT AGREEMENT

Tower COA argues that the trial court should not have granted partial

summary judgment to LP, dismissing with prejudice its counterclaims. We hold

that summary judgment was appropriate and dismissal of Tower COA's

counterclaims and affirmative defenses was correct.

An order granting summary judgment should be affirmed if no genuine

issue of material fact remains and the moving party is entitled to judgment as a
matter of law.7 Summary judgment orders are reviewed de novo, taking

evidence and all reasonable inferences from it in the light most favorable to the
nonmoving party.8

7 CR 56(c).
8 Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).

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No. 67267-3-I/5

RCW 64.34.030

In its partial summary judgment order, the trial court relied on the 2003

release signed by Tower COA and LP as a bar to all of Tower COA's claims.

Tower COA argues that the 2003 settlement agreement with LP does not bar the

claims that it asserts in this litigation. Specifically, it contends that RCW

64.34.030 of the Washington Condominium Act bars enforcement of the release

in the settlement agreement against individual condominium unit owners who

comprise Tower COA. We disagree.

RCW 64.34.030 provides as follows:

Except as expressly provided in this chapter, provisions of this
chapter may not be varied by agreement, and rights conferred by
this chapter may not be waived. A declarant may not act under
a power of attorney or use other device to evade the limitations or
prohibitions of this chapter or the declaration.[9]

The settlement agreement on which LP and the trial court relied to bar

Tower COA's claims states in relevant part:

This agreement, dated for reference purpose as of September 16,
2003, is between . . . Bellevue Pacific Tower COA [Tower COA],
Bellevue Pacific Center Limited Partnership [LP] . . . and is
intended as an outline of settlement of litigation currently pending
between the parties . . . .

1. Claims excluded -- the parties are not settling and reserve the
right to further litigate these issues: (1) Tower's claim that (a) the
voting allocation contained in Center's declaration of one vote for
each of the three units comprising Center violates the Washington
Condominium Act, (b) that a representative on Center's board
other than a representative of Tower's board violates the
Washington Condominium Act, and (2) Center's claim for judicial
reformation of Center's declaration because the square footage of
the P-1 portion of the garage is not included in the total square
footage of the building and the Residential Unit for purposes of

9 Clerk's Papers at 348 (emphasis added).

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No. 67267-3-I/6

allocating expenses under Schedule B of Center's declaration.
Neither party will assert that the resolution of such issues has any
retroactive effect on matters settled herein.

2. Except as to the claims excluded, and subject to the other
terms of this agreement, each party releases every other party from
any and all claims which have been or could have been asserted
in the lawsuit . . . .[1]

We start with the observation that RCW 64.34.304 enumerates certain

powers of a condominium owners' association. Specifically, this statute states

that an association may:

(d) Institute, defend, or intervene in litigation or administrative
proceedings in its own name on behalf of itself or two or more unit
owners on matters affecting the condominium;
(e) Make contracts and incur liabilities.[11]

The plain words of this statute make clear that Tower COA had the power

to settle the prior litigation when it executed the contract containing the release

in 2003. Moreover, we have previously recognized that the Washington

Condominium Act does not prevent or limit the power of an owners' association

from settling disputes. "[N]othing in the language of RCW 64.34.030 and .100

prevents parties from mediating or otherwise settling their disputes in any

manner they wish, including nonbinding arbitration. The [Washington

Condominium Act] restricts only parties' ability to abrogate enforcement of its

terms by judicial proceeding should alternative methods of dispute resolution
fail."12

1 Clerk's Papers at 348 (emphasis added).
11 (Emphasis added.)
12 Marina Cove Condo. Owners Ass'n v. Isabella Estates, 109 Wn. App.
230, 237, 34 P.3d 870 (2001), abrogated on other grounds by Satomi Owners

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No. 67267-3-I/7

Tower COA does not and cannot attack, on its own behalf, the settlement

and release that it signed in 2003. That is because the plain language of the

above statute clearly states that it had the authority to sign that document.

Rather, it argues that the settlement and release cannot be enforced against the

individual condominium unit owners that comprise the association. This

argument is plainly wrong.

There are no Washington cases that address releases and settlement

agreements in the context of the Washington Condominium Act. But there is no

reason to believe that the legal principles that generally apply to settlement

agreements are any different in this context.

Generally, a "settlement is a compromise voluntarily agreed to by the

parties. Each party generally accepts something less than that to which he

believes he is entitled based on a decision that the compromise is more

advantageous to him than the sum of the risks and benefits involved in pursuing
the claim."13 "Each party's promise in the new agreement is supported by an

entirely new consideration -- the return promise of the other. And so the accord

is enforceable as a contractual agreement in its own right. It cuts off all
defenses and arguments based on the underlying contract."14

Chadwick v. Northwest Airlines, Inc.15 applies these principles to the

Ass'n v. Satomi, LLC, 167 Wn.2d 781, 799 n.13, 225 P.3d 213 (2009).
13 Chadwick v. Nw. Airlines, Inc., 33 Wn. App. 297, 301, 654 P.2d 1215
(1982) (quoting Strozier v. General Motors Corp., 635 F.2d 424, 425-26 (5th Cir.
1981)) (quotation marks omitted).
14 Oregon Mut. Ins. Co. v. Barton, 109 Wn. App. 405, 413-14, 36 P.3d
1065 (2001) (internal citations omitted).
15 33 Wn. App. 297, 654 P.2d 1215 (1982).

7

No. 67267-3-I/8

effect of a release in a settlement agreement on a later employment

discrimination claim. There, Chadwick alleged that he was denied the sick leave

Northwest Airlines provided other similarly situated employees because of his
physical handicap.16 Northwest Airlines argued that Chadwick's discrimination

claim was barred by a previous settlement agreement signed after Chadwick had
filed a grievance against the company.17 In the agreement, Chadwick agreed he

could "not . . . file or process any unemployment compensation, Workmen's

Compensation, discrimination or other claims of any nature against the

Company in any form as a result of his resignation or reinstatement
hereunder."18 In his second lawsuit Chadwick contended that the settlement

agreement violated the public policy favoring the elimination of discrimination

against the handicapped. The court rejected this claim:

It is well established settlements are strongly favored and are to be
encouraged. We find no authority for adopting a rule that per se
voids a settlement simply because it involves a possible
discrimination claim. In fact, federal cases interpreting Title VII of
the Civil Rights Act of 1964 . . . consistently favor settlement and
conciliation of discrimination claims.[19]

Though there is a strong public policy favoring the elimination of discrimination,2

the Chadwick court held that the long-standing policy favoring settlements
outweighed the policy in that case.21

16 Id. at 298-99.
17 Id. at 299.
18 Id. (emphasis in original).
19 Id. at 300 (internal citations omitted).
2 See Roberts v. Dudley, 140 Wn.2d 58, 62 n.2, 993 P.2d 901 (2000)
(noting that Washington statutory and legal precedent all "evidence a strong and
clear public policy against discrimination").
21 Chadwick, 33 Wn. App. at 300-01.

8

No. 67267-3-I/9

Here, as in Chadwick, notwithstanding the underlying policy of enforcing

protections of the Washington Condominium Act, the principle of finality of

settlements outweighs any arguments to the contrary. Our conclusion is

buttressed by a Texas case that considered the question now before us. That
case is Jistel v. Tiffany Trail Owners' Ass'n, Inc.22

The Washington Condominium Act is substantially adopted from the
Uniform Condominium Act.23 Thus, cases outside of Washington construing the

same or similar provisions can also be helpful. Jistel is such a case.

In Jistel, the Texas court of appeals held that the waiver provision of the
Texas property code did not preclude the effect of a release.24 There, Jistel

sued Tiffany Trail in 2000 over repairs he said it was required to make.25 Jistel

and Tiffany Trail settled this suit.26 As part of the settlement agreement, Jistel

agreed to dismiss the suit, and the 2000 trial court "entered an order dismissing
Jistel's claims against Tiffany Trail with prejudice."27 Jistel again sued Tiffany

Trail in 2002 over the same repair issues that had been settled in 2000.28 But

Jistel argued his suit was not barred by the release because the

provisions of the Uniform Condominium Act, . . . and Tiffany Trail's
condominium declaration imposed an ongoing responsibility on the
part of Tiffany Trail to make the repairs. Jistel asserted that,
pursuant to [the Uniform Condominium Act, as adopted by Texas],
Tiffany Trail's ongoing obligation to make the repairs could not be

22 215 S.W.3d 474 (Tex. App. 2006).
23 One Pac. Towers Homeowners' Ass'n v. HAL Real Estate, 148 Wn.2d
319, 328 n.7, 61 P.3d 1094 (2002).
24 Jistel, 215 S.W.3d at 482.
25 Id. at 477-78.
26 Id. at 478.
27 Id. at 481.
28 Id. at 477.

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No. 67267-3-I/10

limited or waived by agreement.[29]

Jistel relied upon the language of Texas Property Code § 82.004, taken

from the Uniform Condominium Act, and argued that he could not waive his

rights to repairs given § 82.004. This section mirrors the Uniform Condominium

Act non-waiver provision. It states:

Except as expressly provided by this chapter, provisions of this
chapter may not be varied by agreement, and rights conferred by
this chapter may not be waived. A person may not act under a
power of attorney or use any other device to evade the limitations
or prohibitions of this chapter or the declaration.[3]

The Jistel court concluded, however, that the above provision did not
obviate the effect of Jistel's prior settlement agreement with Tiffany Trail.31

"Jistel chose to settle the 2000 suit and to dismiss the suit instead of going to

trial. Nothing in the language of Section 82.004 of the Property Code prohibits

parties from settling existing, disputed claims in any manner they wish to settle
them."32 The court then noted the important policy rationale supporting the

enforcement of settlement agreements.33

Construing Section 82.004 [as Jistel argues] would violate this
State's policy of encouraging the peaceable resolution of disputes
and the early settlement of pending litigation through voluntary
settlement procedures. It would also lead to great uncertainty in
the finality of settlement agreements and judgments. Finally, such
a construction would lead to unfair results, as is illustrated by this
case. Jistel accepted the benefits under the settlement
agreement.[34]

29 Id. at 478.
3 Tex. Prop. Code Ann. § 82.004 (2007).
31 Jistel, 215 S.W.3d at 482.
32 Id.
33 Id.
34 Id. at 482 (internal quotation marks and quotations omitted).

10

No. 67267-3-I/11

Thus, the Jistel court held that the non-waiver provision of the Texas Property

Code did not defeat the enforceability of Jistel and Tiffany Trail's previous
settlement agreement.35

Here, both LP and Tower COA, each of which was represented by

counsel in the prior litigation, signed the Memorandum of Understanding

Regarding Settlement that contains the release that is now before us. The plain

words of the settlement state that, subject to express exceptions contained in

paragraph 1 of the agreement, "each party releases every other party from any

and all claims which have been or could have been asserted in the
[litigation]."36 The right to control the nine courtyard parking spaces is not

among the items listed as exceptions to the settlement and release. Thus, by its

plain terms, the release applied to this claim of right.

Tower COA was aware of the issue regarding the nine courtyard parking

spaces at the time of settlement and thus could have asserted this claim in its

previous litigation with LP. As both Jistel and Chadwick demonstrate, the

importance of settlement agreements trumps the non-waiver provision included

in RCW 64.34.030. Thus, as in Jistel and Chadwick, the trial court properly

determined that it should enforce the plain words of the release contained in the

2003 settlement agreement. Doing so, it properly granted partial summary

judgment to LP and dismissed the counterclaims of Tower COA.

Further, Tower COA's argument that it was not permitted to waive the

35 Id.
36 Clerk's Papers at 348 (emphasis added).

11

No. 67267-3-I/12

rights of the condominium owners assumes that they had the right to control the

nine parking spaces that are at issue in this case. For the reasons that we

explain in more detail in the unpublished portion of this opinion, neither the

Tower Declaration nor the Center Declaration can reasonably be read,

individually or together, to vest any right to control these nine parking spaces in

anyone other than LP. Thus, the underlying premise of this Tower COA

argument -- that the individual unit owners have a right that has been infringed by

the settlement and release -- is false.

Additionally, Tower COA argues that, because the Condominium Act is

"designed to protect condominium purchasers," it would be contrary to the act

and against public policy to apply the release in a case such as this. This is

unpersuasive.

First, Tower COA fails to identify any applicable contravening public

policy here: the individual unit owners do not have a claim to the nine parking

spaces. Second, as both the Chadwick and Jistel courts made clear, even

where there may be other important public policies to consider, the policy of

settlement is an important and often weightier one.

Tower COA next argues that the right to control the nine courtyard

parking spaces was not contemplated by the Tower COA when it signed the

2003 settlement agreement. Thus, it claims that the plain language of the

release that covers "all claims which have been or could have been asserted

in the [litigation]" should not be given effect. We disagree.

12

No. 67267-3-I/13

Traditional contract principles apply to the interpretation of a release.37

The plain language of the release is not ambiguous. It broadly applies to all

claims that could have been asserted, not just those asserted in the litigation.

Tower COA's argument rests on the false premise that the right to control

the nine parking spaces was not manifest when Tower COA signed the

settlement and release in 2003. The record belies this claim.

In February 2000, the president of Tower COA wrote to all the individual

condominium unit owners concerning "the drive court parking situation." He

gave his assessment of the situation regarding the nine parking spaces now at

issue in this case. He stated:

[Tower COA] must function within the constraints of the Declaration
and the Association Rules and Regulations . . . .

According to these documents, there are specific parking spaces
on P-1, 1, and in the drive court that belong to [Tower COA] as a
Limited Common Element. They are not owned by any particular
unit. They are allocated by the Declarant for the exclusive use
of a specific unit or units. Each allocation is then registered on
Schedule-B to the specific unit or units. This allows the space to
remain allocated to the unit upon resale. Please note, the drive
court spaces are treated in exactly the same fashion as the
space(s) you may have allocated to your unit(s).
The Declarant hasn't allocated the spaces in the drive court.
As the [Tower COA] President I have asked the Declarant to
provide a cost for allocating any or all of the drive court spaces. I
have also asked the Declarant to provide a cost for renting
any or all spaces.[38]

There is no dispute that the reference in the above passage to parking

spaces "in the drive court" is to the nine parking spaces at issue in this case.

37 Bennett v. Shinoda Floral, Inc., 108 Wn.2d 386, 392, 739 P.2d 648
(1987).
38 Clerk's Papers at 345 (emphasis added).

13

No. 67267-3-I/14

Likewise, it is undisputed that his reference to the "Declarant" is a

reference to LP, the declarant under the Tower declaration.

Furthermore, this reference confirms what the Tower declaration

plainly states: the Declarant allocates these nine parking spaces for the

exclusive use of individual units. Finally, he states his request for a quotation of

rental costs for the nine spaces.

In sum, at the time of this written communication, Tower COA had in mind

the issue of control of the nine parking spaces at issue here. It acquiesced in

the view that LP had the right to control these parking spaces under the terms

and conditions of the Tower declaration.

Pursuant to the request stated in the last paragraph of the above

quotation, Tower COA entered into a lease in April 2000 with LP's agent for four

of the nine parking spaces. The lease was for a term of one year and was
automatically renewable on a month to month basis thereafter.39 Tower COA

paid rent on these four stalls from April 2000 through November 2007, and
thereafter ceased payment.4

Based on the same understanding and acquiescence, two individual

residential condominium unit owners leased two more of the nine courtyard
spaces from LP for the period 2000 to 2005.41 These were also leased on a

month to month basis.42

39 Id. at 850.
4 Id.
41 Id.
42 Id.

14

No. 67267-3-I/15

This record thus evidences that Tower COA as well as two unit owners

were aware of the issue of the right to control the nine parking spaces in 2000.

Moreover, they acknowledged and acquiesced in LP's exclusive right to control

these parking spaces by renting them. Whether their reading of the controlling

documents was correct at that time is irrelevant. The relevant fact is that Tower

COA was well aware of the issue of the right to control the nine spaces well

before the 2003 settlement, which released all claims that could have been

made. Likewise, Tower COA acknowledged and acquiesced in the view that LP

had the exclusive right to control these nine spaces by renting the spaces over a

period of time that began well before the 2003 settlement agreement and

release. We also note that no individual owner has asserted in this lawsuit any

contrary understanding.

Tower COA argues that it did not consult with an attorney prior to the

2000 memorandum. That makes no difference. It was represented during the

2001 litigation and at the time the parties signed the 2003 settlement agreement
and release.43 The time of settlement is the material time for purposes of this

argument, and Tower COA was represented at that time.
Tower COA relies on Nevue v. Close44 and Richardson v. Pacific Power &

Light Co.45 to argue that because the parties did not contemplate the specific

claim of ownership of the courtyard parking stalls in the 2003 release, their

arguments are not barred. Both of these cases, dealing with the effect of a

43 Id. at 396.
44 123 Wn.2d 253, 867 P.2d 635 (1994).
45 11 Wn.2d 288, 118 P.2d 985 (1941).

15

No. 67267-3-I/16

release in a personal injury context, are distinguishable.

In Nevue, the plaintiff's injuries were not apparent prior to her signature of

the release, and thus not barred by it. Nevue was involved in a car accident,

and after the accident, she signed a general release, discharging Safeco
Insurance Co. from any other payment other than that outlined in the release.46

Prior to signing the release, the only injury Nevue complained of was neck
strain.47 Only after signing the release did Nevue experience back pain.48 The

court noted that:

Here there was a known minor neck sprain which was no longer
bothering plaintiff when the release was signed. [At issue here] is
a latent back injury which developed after the release was
signed that was not known or contemplated by either the
plaintiff or the insurance adjuster."[49]

The court thus held that the release did not automatically apply to bar
compensation for Nevue's back pain.5 "[A]s to an injury unknown to the plaintiff,

and not within the contemplation of the parties to the release, the release should
not be binding per se."51

Here, as we noted above, Tower COA knew of the issue regarding

ownership of the nine parking stalls at the time of the settlement and release.

Thus, unlike Nevue, there was "manifestation" of the issue before signing the

settlement with the release. Consequently, the court's holding in Nevue is

46 Nevue, 123 Wn.2d at 254.
47 Id.
48 Id.
49 Id. at 256 (emphasis added).
5 Id. at 258.
51 Id. (emphasis added).

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No. 67267-3-I/17

inapposite.

Similarly, the facts in Richardson are distinguishable from those here.
Richardson was electrocuted on the job by a fallen power line.52 His widow sued

Pacific Power & Light after she signed a "Receipt of Release," acknowledging

receipt from the phone company of full payment under its benefit plan and
discharging it from all claims.53 The court held that the release did not waive the

widow's later suit.54 But it based its holding on the fact that the "release"

instrument was merely a receipt for money already payable to the widow.55 That

situation is decidedly different from this case. Here, there is no dispute that the

release was exactly that, no less.

Tower COA also argues that neither party ever contemplated that the

2003 release would cover a later dispute about parking spaces. First, the broad

language of the release does not support this more limited reading. In any

event, whether the parties contemplated that the release itself would cover a

later dispute about parking is not the issue. The fact is that both parties were

aware of and contemplated the control of parking issue prior to the release.

In Nevue, for example, the release did not void plaintiff's later claim for back

injuries because it was unknown to her, not because she knew of it but thought
the release would not apply to those particular problems.56 Here, that is not the

case.

52 Richardson, 11 Wn.2d at 295-96.
53 Id. at 319.
54 Id. at 320.
55 Id.
56 Nevue, 123 Wn.2d at 256.

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No. 67267-3-I/18

Tower COA also argues that the plain words of the waiver cannot apply to

any dispute about the interpretation of the declarations. But the plain language

of the release is clear. It reads: "Each party releases every other party from any
and all claims which have been or could have been asserted in the [litigation]."57

And, the principles upon which Tower COA relies to argue that the release

should mean something other than it does, ejusdem generis and noscitur a

sociis, do not apply here. Under these maxims of statutory construction, general

words followed by words of a particular meaning, are not to be construed to their
widest extent.58 Instead, they are to be applied only to persons or things of the

same general kind as those specifically mentioned.59 But these principles

require that the general and specific terms be connected in some way.6 The

"specific" words that preceded the general release here was a detailed list of the

claims excluded from the release. Thus, the "general" words of the release had

no connection to the "specific" words of the claims excluded.

In addition to granting partial summary judgment based on the release's

effect, the trial court dismissed Tower COA's counterclaims in its order. Though

the court did not specifically reference Tower COA's affirmative defenses in its

summary judgment order, it later determined that they had been impliedly

dismissed with the earlier dismissal of the counterclaims.

The affirmative defenses Tower COA pleaded in its Answer were:

57 Clerk's Papers at 348.
58 Cockle v. Dep't of Labor & Indus., 142 Wn.2d 801, 808, 16 P.3d 583
(2001).
59 Id.
6 Dean v. McFarland, 81 Wn.2d 215, 221, 500 P.2d 1244 (1972).

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"unclean hands and inequitable conduct," "misrepresentations and breaches of

fiduciary duty," "[f]ailure to state a claim upon which relief can be granted," and
the breach of "RCW 64.34.216(i), (j) and RCW 64.34.228."61 This record shows

neither evidence nor argument for the first three affirmative defenses, nor for
breach of RCW 64.34.216(1)(i). Therefore, we need not address them further.62

The remaining claim is grounded in a challenge over the right to control

and allocate the nine spaces at issue in this case. At oral argument of this case,

Tower COA properly conceded that its affirmative defenses and counterclaims
were essentially the same.63 Given the trial court's grant of partial summary

judgment and dismissal of Tower COA's counterclaims, these remaining

affirmative defenses were no longer viable.

The balance of this opinion has no precedential value. Accordingly,

pursuant to RCW 2.06.040, it shall not be published.

DECLARATIONS

We may affirm the grant of partial summary judgment on any ground
supported by the record.64 We do so here on the additional basis of the

controlling documents, the Tower Declaration and Center Declaration.

The Center Declaration is the most logical starting point to determine who

61 Clerk's Papers at 12.
62 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828
P.2d 549 (1992).
63 COA summarizes its affirmative defenses in its briefing as follows: "(1)
inequitable conduct and unclean hands; (2) misrepresentation and breach of
fiduciary duty; and (3) breach of RCW 64.34.216(i), (j) and RCW 64.24.228."
Appellant Bellevue Pac. Tower Condo. Owners Ass'n Opening Brief at 16.
64 King County v. Seawest Inv. Assoc., LLC, 141 Wn. App. 304, 310, 170
P.3d 53 (2007).

19

No. 67267-3-I/20

controls the nine parking spaces at issue here. Section 6.2 of that declaration

expressly provides for the allocation of the nine parking spaces to the

Residential Unit (the Tower Condominium):

Section 6.2: Limited Common Elements Allocated to the
Residential Unit. The Common Elements allocated to the
Residential Unit as Limited Common Elements include any areas
or facilities identified on the Survey Map and Plans by the
designation "RLCE," plus the following:
. . .
6.2.5 Main Entrance. The main entrance to the Building for the
use of Residential Units, including portions of the exterior
driveway, parking, and landscaped areas leading from 107th
Avenue N.E., which are shown on the Survey Map and Plans by
the designation RCLE.[65]

As Section 6.1 of this declaration provides, these nine parking spaces are

"Limited Common Elements" for the Residential Unit, the Tower Condominium:

"Limited Common Elements are Common Elements that are reserved for the
exclusive use of the Unit or Units to which they are allocated."66

We turn next to the Tower Declaration for further specification of the right

to control the nine parking spaces. This declaration bears a recording number

just two numbers higher than the Center Declaration, indicating near

simultaneous recording of these declarations.

Section 3.1 of the Tower declaration describes the property comprising

this condominium:

Property. The real property comprising the Condominium is
described in Schedule A and consists of the Residential Unit as
defined in the Mixed Use Condominium Declaration, plus certain
limited common elements allocated to the Residential Unit
under the Mixed Use Condominium Declaration, together with

65 Clerk's Papers at 197 (emphasis added).
66 Id.

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certain easement rights pertaining thereto.[67]

It is patently obvious that the emphasized portion of this property description

specifically refers to the nine parking spaces as well as other limited common

elements of the Center Declaration. There is no other reasonable way to read

this provision together with the Center Declaration.

Section 3.3 further describes parking spaces as follows:

Parking Spaces. There are a total of 131 parking spaces in the
Condominium, consisting of 122 enclosed parking spaces located
on Level P-1, and 9 exposed parking spaces located in the
courtyard area surrounding the main entrance to the
Condominium. In addition, up to 45 parking spaces located on
Floor 1 of the Building may be allocated as limited common
elements to the Residential Unit under the Mixed Use
Condominium Declaration for use by the Owners of the Units in
accordance with certain terms and conditions set forth in the Mixed
Use Condominium Declaration.[68]

Section 6.5 specifies further how parking spaces are to be allocated by

LP, the declarant under the Tower Declaration.

Section 6.5.1 states:

General. Parking spaces and storage spaces are or shall be
allocated to Unit(s) by Declarant pursuant to Schedule B or an
amendment to Schedule B executed solely by Declarant.
Declarant is not required to allocate a parking space or storage
area to a Unit. Nothing in this Declaration shall restrict Declarant's
right to allocate for value parking spaces or storage areas/spaces
for value as Limited Common Area to a Unit.[69]

67 Id. at 84 (emphasis added).
68 Id. (emphasis added).
69 Id. at 86 (emphasis added).

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Section 6.5.3 states:

Storage and Parking Spaces Allocated Pursuant to Mixed Use
Condominium Declaration. References to parking spaces and
storage spaces in this Article 6 include storage spaces and parking
spaces which may be allocated to the Residential Unit in
accordance with the terms of the Articles 6 and 25 of the Mixed
Use Condominium Declaration. The use of such spaces is also
subject to the terms and conditions set forth in the Mixed Use
Condominium Declaration.[7]

Section 6.6.2 states: "Rental of Parking and Storage Spaces by

Declarant. The Declarant may rent a parking space or storage area which is
unallocated and collect all income from such rental."71

Finally, Section 25.2.2 states:

Storage and Parking Allocations. Declarant reserves the right to
make the initial allocation of storage areas and parking spaces as
Limited Common Element to particular Unit(s), as described in
Section 6.5, with such allocations to be made in Schedule B
attached hereto (or by amendment thereto). With respect to each
Unit, Declarant shall make such allocations prior to or
contemporaneously with the closing of the sale of such Unit by
Declarant. At least annually, the Declarant shall record an
amendment to Schedule B identifying the allocations made to date.
Once the Declarant's right to make such allocations has expired,
the balance of any parking spaces and storage areas, if any, not so
allocated to specific Units shall continue as part of the Common
Elements (not as Limited Common Elements) to be used in
accordance with the rules and regulations established from time to
time by the Board.[72]

A fair reading of these relevant sections of the Center Declaration and

Tower Declaration leads to several conclusions. The Center Declaration, by its

terms, allocates the nine parking spaces and certain other elements to the

7 Id.
71 Id.
72 Id. at 118-19.

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Tower condominium. Further, LP reserved to itself the exclusive right to allocate

individual parking spaces to individual units within the Tower condominium.

Finally, there is absolutely no right of either Tower COA or the individual unit

owners in the Tower condominium to control any of these nine parking spaces

without LP first allocating them to specific individual units within the Tower

condominium.

Despite the plain language of these controlling documents, Tower COA

claims that LP does not have the exclusive right to control the nine parking

spaces. This argument has no support in the declarations.

Tower COA argues that the condominium declarations permit LP to make

only initial allocations of parking spaces. It contends that because LP

"reallocated" the courtyard parking spaces to unit 703, it violated the Tower

Declaration and RCW 64.34.228, which provides guidelines for reallocation of
limited common elements.73 Additionally, Tower COA argues that the Tower

Declaration violates the Washington Condominium Act, RCW 64.34.216(1)(j), as
it does not include a time limit for exercising the declarant's rights.74

The second argument is barred by the release and settlement agreement

that the parties executed in 2003. As we have already explained, the partial

summary judgment order properly dismissed all claims that could have been

asserted in the prior litigation between these parties. The challenge to the

alleged violation of RCW 64.34.216(1)(j) by the Tower Declaration could have

73 Appellant Bellevue Pac. Tower Condo. Owners Ass'n Opening Brief at
10-11.
74 Id.

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been asserted in the prior litigation. That is because the alleged violation was

contained in the Tower Declaration at that time. Because it was either known or

should have been known at the time of the settlement and release, we do not

further address this claim.

Assuming without deciding that the "reallocation" argument is not barred

by the settlement and release, it has no merit. There simply was never any

prohibited "reallocation," as Tower COA argues.

In 2008, LP allocated one parking spot to unit 703. Then, in 2009, it

allocated all nine of the courtyard spaces to this unit. This allocation was

permitted under the Tower Declaration. LP's allocation of all nine of the

courtyard parking spaces to unit 703, which it owns, was not a violation of the

Tower Declaration.

Section 6.7.3 -- "Reallocation of Parking Spaces and Storage

Spaces" -- provides:

The Declarant shall have the right to change the allocation of
parking spaces and storage areas to Units by recording an
amendment to Schedule B, provided the Declarant has obtained
the written consent of the Owners of the Units affected. In
addition, any two or more Unit Owners may, upon approval of the
Board, exchange the parking spaces or storage areas allocated to
their respective Units by jointly executing and recording an
instrument effecting the exchange.[75]

Here, LP, as the declarant under this Tower Declaration, had the right "to

change the allocation of parking spaces," provided LP obtained the consent of

the affected individual units. Obviously, it was the owner of the affected unit,

75 Clerk's Papers at 87 (emphasis added).

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No. 67267-3-I/25

703, when it changed the allocation among the units it then owned. This was

expressly permitted by the plain words of the Tower Declaration. There simply is

no reasonable argument to the contrary.

Tower COA points to section 25.2.2 and section 6.5 of the Tower

Declaration, as well as section 6.6 of the Center Declaration, to argue that this

"reallocation" was not proper. It argues that, together, these sections indicate

that LP initially allocated the courtyard parking stalls as limited common

elements to the Residential Unit, the Tower. Thus, according to Tower COA, LP

cannot "reallocate" the stalls to a specific residential unit.

This mixing of apples and oranges leads, predictably, to confusion. The

interpretation of the declarations that we previously discussed is the only

reasonable reading of these documents. Accordingly, we reject the alternative

readings argued by Tower COA.

AFFIRMATIVE DEFENSES AND COUNTERCLAIMS

Tower COA argues that the motion for partial summary judgment was

"silent as to the Tower COA's affirmative defenses." Thus, it claims that the

judge should have permitted it to present these defenses at trial. We disagree.

As the United States Supreme Court stated in Reiter v. Cooper, an

"[affirmative] defense cannot possibly be adjudicated separately from the
plaintiff's claim to which it applies; a counterclaim can be."76 In C-C Bottlers, Ltd.

v. J.M. Leasing, Inc.,77 Division Three of this court evaluated whether the claims

76 507 U.S. 258, 265, 113 S. Ct. 1213, 122 L. Ed. 2d 604 (1993).
77 78 Wn. App. 384, 896 P.2d 1309 (1995).

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made by J.M. Leasing were counterclaims or affirmative defenses.78 The court

held that the claims were counterclaims as they neither affected, nor were they
affected by, the outcome of the plaintiff's underlying claims.79

Here, the court's summary judgment order dismissed Tower COA's

counterclaims with prejudice. The order is silent on affirmative defenses. Our
review of this order is de novo.8

When the court entered the partial summary judgment order, it stated: "I
find in favor of plaintiff's motion on the release of the claims."81 It went on,

THE COURT:

[F]or purposes of the appeal, the Court of Appeals may not care on
what basis I find, but for your edification that is the reason for the
ruling today.
. . .

It is interesting, the language in the [proposed] order handed
forward says that "the Court declares that the nine courtyard
parking stalls located in the Bellevue Pacific Tower Condominium
were properly allocated."

That is really not my finding. It is any claim about the allocation
was waived in the release, is really what I have found.[82]

At the bench trial that followed before a different judge, Tower COA

argued that it should be permitted to present affirmative defenses to LP's claims,

notwithstanding the partial summary judgment order. The trial court held that it

could not:

78 Id. at 387-88.
79 Id. at 387.
8 Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985).
81 Clerk's Papers at 575.
82 Id. at 576-77 (emphasis added).

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No. 67267-3-I/27

THE COURT:

I reviewed the [summary judgment] decision and more importantly,
I spoke with [the judge who issued the order on summary judgment]
. . . and confirmed that the scope of this [trial is] damages and
affirmative defenses to damages, not affirmative defenses to the
right to damages.[83]

Tower COA's attorney chose to make a record.

MR. BRAIN: Okay. Let me just raise one issue so that I can make
this clear on the record.

Our position with respect to [Section] 25.2.2 is that that issue could
not have been raised prior to the initial --

THE COURT: What's 25.2.2?

MR. BRAIN: Your Honor, that's the provision that says that storage
and parking allocation -- remember, that's the one to make an initial
allocation. This was not argued before.

THE COURT: Okay. Now you're back into the other issue. I know
where you're going now.

Your position is that [the judge entering the partial summary
judgment order] is wrong.

MR. BRAIN: Not so much because he never -- this was never
placed before him. He . . . was dealing with Center versus Tower
allocation, not 25.2.2 allocation. And the reason for that is this
issue did not arise -- and again, I'm making this for the record. It
did not arise until there was the allocation in the 10th amendment
which was September of 2008 when every unit had received an
allocation.

THE COURT: I recognize that's your position. . . . [The judge
entering the partial summary judgment order] ruled that this claim,
which he considered to be a claim, was covered by the release.[84]

As the United States Supreme Court stated in Reiter and Division Three

83 Report of Proceedings (March 28, 2011) at 5 (emphasis added).
84 Id. at 6-7.

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noted in C-C Bottlers, affirmative defenses are claims that are affected by and
which affect a plaintiff's claims.85 As such, they cannot be adjudicated

separately from the merits of these claims.86

Here, Tower COA's affirmative defenses depended upon LP's claims and

could not be adjudicated separately from them. Thus, when the lower court

granted partial summary judgment, it also impliedly dismissed the affirmative

defenses that depended on LP's claims.

Moreover, there can be no doubt that dismissal of both Tower COA's

affirmative defenses and counterclaims was proper on this record.

Tower COA's affirmative defenses were (1) inequitable conduct and

unclean hands; (2) misrepresentation and breach of fiduciary duty; (3) failure to

state a claim upon which relief could be granted; and (4) breach of RCW

64.34.216(i), (j) and RCW 64.34.228. There is neither evidence nor argument in

this record that has been called to our attention to support the first three

categories of claims. As noted above, Tower COA's appellate briefing makes no
reference to RCW 64.34.216(i) and any claim as to this subsection is barred.87

Thus, only the claim based on RCW 64.34.216(j) and 64.34.228 remains before

us. But, as we explained above, Tower COA's arguments regarding both of

these sections of the Washington Condominium Act are without merit. Tower

COA properly conceded at oral argument that its affirmative defenses were

substantially the same as its counterclaims, which the court properly dismissed.

85 Reiter, 507 U.S. at 265; C-C Bottlers, 78 Wn. App. at 387-88.
86 Id.
87 Cowiche Canyon, 118 Wn.2d at 809.

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No. 67267-3-I/29

Thus, we conclude that both sets of claims were without merit and properly

dismissed by the trial court.

Tower COA argues that because "[n]othing in [LP's] motion, the trial

court's order or the transcript of the hearing addresses any of Tower COA's

affirmative defenses," it should have been permitted to raise its affirmative
defenses.88 For the reasons we have explained, this argument is unpersuasive.

BENCH TRIAL

Tower COA assigned error to the trial court's findings of fact and

conclusions of law. But it does not support those assignments of error with
argument or citation to authorities. Accordingly, we do not consider them.89

Whether the trial court derived the correct legal conclusions from those
facts is a question of law we review de novo.9 For the reasons we previously

explained, these conclusions were proper.
We interpret a condominium declaration like a deed.91 Thus, as with a

88 Appellant Bellevue Pac. Tower Condo. Owners Ass'n Reply Brief at 14.
89 See RAP 10.3(a)(5); Cowiche Canyon, 118 Wn.2d at 809; State v.
Farmer, 116 Wn.2d 414, 433, 805 P.2d 200 (1991).
9 State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002).
91 Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d
1283 (2010).

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deed, we must give meaning to every word in the declaration if possible.92 "It

has long been the rule of our state that, where the plain language of a deed is
unambiguous, extrinsic evidence will not be considered."93

Here, the trial record shows that LP controlled the courtyard parking

spaces and that Tower COA's actions had consequently made it a holdover

tenant of the stalls it had originally rented from LP and a tenant by sufferance of

other stalls. The court concluded that Tower COA owed LP $78,500 in

damages. These findings were supported by substantial evidence in the record

and supported the court's conclusions.

ATTORNEY FEES

Tower COA contends that the trial court erred when it failed to segregate

or reduce the attorney fees awarded to LP for time spent pursuing its claims

based on the release. Both sides request fees on appeal. The trial court did not

abuse its discretion in awarding the amount of fees it did in favor of LP. We

award LP fees on appeal, subject to its compliance with RAP 18.1(d).

Trial Fees

RCW 64.34.455 provides that a trial court, "in an appropriate case, may

award reasonable attorney's fees to the prevailing party." As this court noted in
Eagle Point Condominium Owners Ass'n v. Coy,94 "an award of fees under the

Condominium Act . . . may, in the court's discretion, be reduced on account of

92 Newport Yacht Basin Ass'n of Condo. Owners v. Supreme Nw., Inc.,
168 Wn. App. 56, 64, 277 P.3d 18 (2012).
93 Id.
94 102 Wn. App. 697, 9 P.3d 898 (2000).

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No. 67267-3-I/31

the prevailing party's limited success. It may also be discounted by the amount
of fees attributable to counsel's work on unsuccessful claims . . . ."95 Further, the

lease under which LP sued included a clause providing for an award of attorney

fees and legal costs to the prevailing party in litigation.

Generally, an appellate court will not disturb the amount of a trial court's
award of attorney fees unless the trial court abused its discretion.96 The party

challenging the trial court's decision bears the burden of demonstrating that the
award was clearly untenable or manifestly unreasonable.97 "Whether attorneys'

fees are reasonable is a factual inquiry depending on the circumstances of a

given case and the trial court is accorded broad discretion in fixing the amount of
attorneys' fees."98 When "an attorney fees recovery is authorized for only some

of the claims, the attorney fees award must properly reflect a segregation of the

time spent on issues for which attorney fees are authorized from time spent on
other issues."99

Here, the trial court reduced the original attorney fee award by $13,666.

It did so "to reflect that ½ of the disputed charges of $27,332 is attributed to the

release issue which does not include recovery of attorney fees, but since the

95 Id. at 714.
96 Id. at 715 (citing In re Marriage of Crosetto, 82 Wn. App. 545, 563, 918
P.2d 954 (1996); Schmerer v. Darcy, 80 Wn. App. 499, 509, 910 P.2d 498
(1996)).
97 Crosetto, 82 Wn. App. at 563 (quoting In re Marriage of Knight, 75 Wn.
App. 721, 729, 880 P.2d 71 (1994)).
98 Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d
299, 335, 858 P.2d 1054 (1993) (citing Schmidt v. Cornerstone Invs., Inc., 115
Wn.2d 148, 169, 795 P.2d 1143 (1990)).
99 Hume v. Am. Disposal Co., 124 Wn.2d 656, 672-73, 880 P.2d 988
(1994) (citations omitted).

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same issues and work was also required to litigate the lease, 50% recovery is a
fair allocation."1 Given that the court's summary judgment order was based on

the release argument, its discounting of 50 percent of the defendant's claimed

segregation was not an abuse of discretion.

Fees on Appeal

Tower COA and LP both request attorney fees on appeal, as provided for

under RCW 64.34.455, RAP 18.1(b), and the lease under which LP sued.

Because Tower COA is not the prevailing party on appeal, its request is denied.

LP, as the prevailing party, is entitled to such an award.

* * *

See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=672673MAJ

Outcome: We affirm the partial summary judgment, final judgment, and fee award.

We also award LP attorney fees on appeal, subject to its compliance with RAP

18.1.

Plaintiff's Experts:

Defendant's Experts:

Comments: