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                                                                2016 JUL 25 AM S^ 36




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

2200 RESIDENTIAL ASSOCIATION,                   No. 72651-0-1


                           Respondent,

                 v.                             UNPUBLISHED OPINION

JOSEPH GRACE and JANE DOE
GRACE, husband and wife,

                           Appellants.          FILED: July 25, 2016

      Schindler, J. — Joseph Grace appeals the order granting summary judgment

dismissal with prejudice of all the claims asserted in the 2011 lawsuit and 2013 lawsuit

that was filed against him by 2200 Residential Association (the Residential Association)

for unpaid condominium assessments. We affirm.

      Grace owns a residential unit in a large mixed-use condominium complex in

Seattle. As the owner of a residential unit in the condominium, Grace is a member of

the Residential Association. The Residential Association owners are obligated to pay a

percentage of the condominium common area expenses. The Residential Association

filed a lawsuit against Grace in 2011 and 2013 seeking collection of unpaid

condominium assessments.
No. 72651-0-1/2



       Grace asserted counterclaims and defenses in both lawsuits. Grace claimed the

Residential Association did not have the legal authority to require him to pay the

assessments. Grace alleged the condominium developer and real estate agents who

were not parties in the lawsuit made "[m]ajor misrepresentations and errors of omission"

and as a result, "[t]he initial sale of [residential] units was (and still is) a fraud." Based

on the premise that the sale of residential units was fraudulent, Grace asserted the

Residential Association "is legally, procedurally, and effectively devoid of legitimate

governing documents." Grace also asserted a number of other claims including the

Residential Association failed to hold board meetings, failed to properly notify him of

meetings and owner obligations, rigged board elections, and "bull[ied] [Grace] into

political obscurity."

       The Residential Association obtained three judgments against Grace for the

unpaid assessments and attorney fees and costs. On December 1, 2014, the trial court

entered an order consolidating the 2011 and 2013 lawsuits.

       The Residential Association filed a motion for summary judgment seeking to

dismiss the counterclaims and defenses Grace asserted in the 2011 and 2013 lawsuits.

The Residential Association submitted declarations and documents showing it had the

authority to impose and collect assessments, properly conducted regular board

meetings, and provided notice to Grace. The trial court granted the Residential

Association's motion for summary judgment dismissal with prejudice of all claims

asserted by Grace in the 2011 and 2013 lawsuits. The trial court entered a judgment

against Grace awarding the Residential Association the past-due condominium

assessments Grace owed and reasonable attorney fees. Grace appeals.

                                                2
No. 72651-0-1/3



       We review summary judgment de novo, engaging in the same inquiry as the trial

court. Michak v. Transnation Title Ins. Co.. 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003).

Summary judgment is proper if, viewing the facts and reasonable inferences in the light

most favorable to the nonmoving party, no genuine issues of material fact exist and the

moving party is entitled to judgment as a matter of law. CR 56(c); Michak, 148 Wn.2d at

794-95. The moving party may meet the initial burden of proof by showing that there is

an absence of evidence to support the nonmoving party's case. Lake Chelan Shores

Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co., 176 Wn. App. 168, 179, 313 P.3d

408(2013). The burden then shifts to the nonmoving party. Young v. Key Pharm.. Inc..

112Wn.2d216, 225, 770 P.2d 182 (1989). Ifthe nonmoving party then fails to make a

showing sufficient to establish the existence of an element essential to that party's case

and on which that party will bear the burden of proof at trial, the trial court should grant

the motion. Young, 112 Wn.2d at 225.

       Grace argues the court erred in granting summary judgment because he raised

genuine issues of material fact as to whether the Residential Association had the

authority to seek payment of the condominium assessments. The record does not

support his argument.

       The undisputed record shows the Residential Association had the authority to

impose assessments. The "Condominium Declaration" grants authority to the

condominium board of directors (Board) to determine the common and specially

allocated expenses paid by the Residential Association and its members through

monthly assessments. The Residential Association submitted declarations and exhibits

showing the Board approved and the owners ratified assessments every year since

                                              3
No. 72651-0-1/4



2007. The evidence includes minutes from Board meetings and notice of budget

summaries sent to owners. The Residential Association also provided transaction

reports demonstrating Grace did not pay assessments since 2007. And Grace

concedes the owner of a condominium residential unit may not withhold payment of

condominium assessments as a form of protest. See Panther Lake Ass'n v.

Juergensen, 76 Wn. App. 586, 887 P.2d 465 (1995).

      Grace did not rebut the evidence presented by the Residential Association.

Grace claimed the Residential Association lacked legal authority because of fraudulent

sales of residential units by the condominium developer. But Grace presented no

evidence to support this claim. Grace also argued there were significant procedural

irregularities including the failure to hold meetings, maintain meeting minutes, and

conduct a proper budget process. But the Residential Association presented evidence

directly contradicting these allegations, and Grace did not submit any evidence

supporting his argument.

       Grace also alleged he never received notice of the 2011 "Annual Residential

Association Meeting." The record shows Grace designated his attorney's office as his

address of record for notice from the Residential Association. Grace asserted his

attorney never received notice. But Grace did not present any evidence to support his

assertion. Further, the record shows Grace attended and participated at the 2011

Annual Residential Association Meeting.

       Absent admissible evidence setting forth specific facts showing there is a

genuine issue for trial, Grace's unsupported allegations are insufficient to survive

summary judgment. Young, 112 Wn.2d at 225.

                                             4
No. 72651-0-1/5



      The Residential Association requests an award of attorney fees and costs on

appeal. The Condominium Declaration provides that the Residential Association is

entitled to recover costs and reasonable attorney fees on appeal. Upon compliance

with RAP 18.1, the Residential Association is entitled to reasonable attorney fees and

costs on appeal.

      We affirm summary judgment dismissal with prejudice of the counterclaims and

defenses Grace asserted in the 2011 and 2013 consolidated lawsuits filed by the

Residential Association.




WE CONCUR:
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