                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 10, 2016

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    JEFF GRAHAM and JOHN GRAHAM,                                      No. 47651-7-II

                                Appellants,

          v.

    HEATHER    RANKOS  and   GEORGE                          UNPUBLISHED OPINION
    RANKOS, and NORTH OAKES MANOR
    CONDOMINIUM ASSOCIATION,

                                Respondents.

         MELNICK, J. — Jeff Graham and his father, John Graham, appeal the dismissal of their

declaratory action against fellow condominium association members George and Heather Rankos

and the North Oakes Manor Condominium Association (the Association), arguing they were

wrongly removed as Association board members. The Grahams allege they were denied notice of

the vote to remove them, and the vote was not by a supermajority. We disagree and affirm.

                                               FACTS

         The Association is made up of eight condominium owners, each condominium has one

voting right associated with it. Jeff1 was the Association president and treasurer and John was the

Association vice president and secretary. Jeff owned three of the eight condominiums and John

lived in one of them.




1
    We use first names to avoid confusion. We intend no disrespect.
47651-7-II


       The Association members met in October 2014, and voted to remove the Grahams from

the Association board.2 The vote was five to three with the three votes against removal coming

from Jeff’s three voting rights. A two-thirds vote would require six out of eight votes. Since the

vote was insufficient, the Association believed the vote failed under RCW 64.34.308(8).

       The Association later learned foreclosure proceedings had begun on Unit 1913-C, one of

Jeff’s units. Based on the Association’s covenants, conditions, and restrictions, Jeff no longer had

a voting right for that unit. Another removal vote occurred at a November 2014 meeting. The

vote was five to two. Because five out of seven votes exceeded the required two-thirds majority,

the Association removed Jeff and John as board members. The Association members met again

in December and elected a new board. The Grahams did not attend.

       On January 9, 2015, ownership of Unit 1913-C, transferred from Jeff’s limited liability

company to U.S. Bank in a foreclosure sale. An annual owners’ meeting was scheduled for

January 24. The Association “property manager” sent the meeting agenda to the condominium

owners.3 Clerk’s Papers (CP) at 183. The agenda for the January 24 owners’ meeting did not list

board member removal as an agenda item, but notified the owners that the Association would

“[r]eview and ratify [the December] meeting minutes” and address any “[n]ew items from any

owner.” CP at 184.




2
 RCW 64.34.308(8) requires “a two-thirds vote of the voting power in the association present . . .
may remove any member of the board of directors with or without cause.”
3
  Under RCW 64.34.332, the secretary, or another specified officer, of a condominium association
must provide notice to each unit owner of an upcoming owners’ meeting and “shall state . . . the
items on the agenda to be voted on by the members, including . . . any proposal to remove a director
or officer.”


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47651-7-II


          The Grahams attended the January 24 owners’ meeting and contested their earlier removal

and the previous election of a new Association board. The Association agreed to a new vote. The

Association members again voted five to two to remove the Grahams.4

          The Grahams filed a complaint,5 seeking declaratory relief, declaring that their removal

was invalid. The Grahams further asked the trial court to declare Jeff the president of the

Association board. The Grahams moved for summary judgment, and the Association requested

dismissal of the Grahams’ declaratory action. The trial court ruled that “the ‘Graham’ board was

validly removed,” and dismissed the Grahams’ complaint. CP at 170. The Grahams moved for

reconsideration, providing supplemental materials and arguing their removal was invalid based on

lack of notice. The court denied their motion, noting it considered the Grahams’ supplemental

materials. The Grahams appeal.

                                             ANALYSIS

I.        STANDARD OF REVIEW

          While we recognize a court’s dismissal of a request for declaratory relief is reviewed for

abuse of discretion,6 the Association’s pleadings and the trial court’s order are unclear on what

basis the court granted the Association’s dismissal request. We adopt the higher standard of review

for summary judgment dismissals, and review the dismissal de novo. Woods v. H.O. Sports Co.

Inc., 183 Wn. App. 145, 148, 333 P.3d 455 (2014). Summary judgment is appropriate when there

is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.




4
     U.S. Bank owned one of the units and did not send a representative to the meeting.
5
 The Grahams had previously filed an injunctive relief action in Pierce County Superior Court
under cause no. 14-2-06599-5, which is not the subject of this appeal.
6
     Grandmaster Shen–Yen Lu v. King County, 110 Wn. App. 92, 99, 38 P.3d 1040 (2002).


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CR 56(c). We review the facts and reasonable inferences in the light most favorable to the

nonmoving party. Seiber v. Poulsbo Marine Ctr., Inc., 136 Wn. App. 731, 736, 150 P.3d 633

(2007).

II.       NOTICE

          The Grahams first contend the Association failed to provide proper notice of the January

24, 2015 meeting thereby invalidating the vote at the meeting to remove Jeff and John from the

board. They contend that under RCW 64.34.332, notice must be provided when a meeting involves

a proposal to remove a director or an officer.

          Initially we address the Association’s argument that the Grahams improperly raise this

issue for the first time on appeal. Generally issues may not be raised for the first time on appeal.

RAP 2.5(a). However, while the Grahams’ notice issue was not raised in their initial pleadings, it

was raised during their request for reconsideration, and the trial court expressly stated it considered

the issue prior to denying reconsideration. Thus, the Grahams sufficiently preserved this issue for

our review.

          Washington’s Condominium Act, chapter 64.34 RCW, requires condominium associations

to provide notice of upcoming meetings not less than 10 days nor more than 60 days in advance.

RCW 64.34.332. The Act further requires the notice to include an agenda that provides notice of

“any proposal to remove a director or officer.” RCW 64.34.332.

          Here, the owners received a meeting agenda, stating that at the January 24 meeting, the

Association would “[r]eview and ratify [the December] meeting minutes” and address any “[n]ew

items from any owner.” CP at 184. At the time of the notice, the Grahams had already been voted

out as board members. They, however, attended the January 24 meeting and protested their




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47651-7-II


removal. This protestation resulted in a new vote. The Association members again voted for their

removal.

         It would be disingenuous for the Grahams to complain of lack of notice of a removal vote

in January when the Grahams instigated the vote after the meeting started. The Association did

not anticipate or plan for a new vote. Nevertheless, the agenda sufficiently notified owners that a

new vote could be possible by stating that the December 2014 meeting minutes would be ratified

(where a new board was elected), and that the Association would address new issues any owner

raised. Moreover, Jeff’s votes were cast in opposition to his removal, precluding any perceived

prejudice. See Hasit LLC v. City of Edgewood, 179 Wn. App. 917, 954, 320 P.3d 163 (2014)

(notice should afford individuals a meaningful opportunity to present their objections).

         Next, the Grahams object to U.S. Bank’s lack of notice, arguing if U.S. Bank received

notice it may have voted by proxy in Jeff’s favor. This argument is not only purely speculative,

but improper. “‘The doctrine of standing generally prohibits a party from asserting another

person’s legal right.’” In re Estate of Fitzgerald, 172 Wn. App. 437, 452, 294 P.3d 720 (2012)

(quoting Timberlane Homeowners Ass’n, Inc. v. Brame, 79 Wn. App. 303, 307, 901 P.2d 1074

(1995)). The Grahams cannot raise an assignment of error for lack of notice to U.S. Bank. That

right is reserved to U.S. Bank. Thus, the Grahams lack standing to contest U.S. Bank’s legal right

to notice.

III.     TWO-THIRDS MAJORITY VOTE

         The Grahams next contend their removal was not supported by a two-thirds majority of

owners, as required under RCW 64.34.308(8), because only five voted for removal out of eight

votes.




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47651-7-II


       Statutory interpretation is a question of law we review de novo. Jametsky v. Olsen, 179

Wn.2d 756, 761, 317 P.3d 1003 (2014). The primary goal of statutory interpretation is to

determine and give effect to the legislature’s intent. Jametsky, 179 Wn.2d at 762. To determine

legislative intent, we first look to the statute’s plain language. Jametsky, 179 Wn.2d at 762. “We

consider the language of the provision in question, the context of the statute in which the provision

is found, and related statutes”. Protect the Peninsula’s Future v. Growth Mgmt. Hr’gs Bd., 185

Wn. App. 959, 969, 344 P.3d 705 (2015). We give words their usual and ordinary meaning. Lake

v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010).

       RCW 64.34.308(8) states that “the unit owners, by a two-thirds vote of the voting power

in the association present and entitled to vote at any meeting of the unit owners at which a quorum

is present, may remove any member of the board of directors with or without cause.” (Emphasis

added). A quorum exists when “twenty-five percent of the votes of the association are allocated

are present in person or by proxy at the beginning of the meeting.” RCW 64.34.336(1).

       Here, there are eight units, or eight voting rights. Seven were represented at the January

24 meeting. Relying on RCW 64.34.308(8)’s and RCW 64.34.336(1)’s plain language and reading

the statutes in context and in relation to each other, the seven owners present at the January 24

meeting were a quorum, and over two-thirds of the quorum voted to remove the Grahams as board

members. This vote constituted RCW 64.34.308(8)’s two-thirds requirement.

       Lastly, the Rankos included an assignment of error in their response brief regarding

whether the Grahams’ attorney violated the rules of professional conduct. Under RAP 5.1(d), a

respondent seeking review of a lower court decision must file a timely notice of appeal. Because

the Rankos did not do so, we do not consider their issue.




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47651-7-II


        Based on the above, the trial court did not err in denying the Grahams’ request for

declaratory relief. The court properly dismissed the action.

        We affirm.
        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                               Melnick, J.

We concur:




        Johanson, P.J.




        Sutton, J.




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