                                                                                           FILED
                                                                                    COURT OF APPFAE -S


                                                                                26 13 NOV - 5      AM 8: 57

                                                                                STATE OF WASHINGTON

                                                                                    Y1
                                                                                               FKITY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION H

GRANVILLE CONDOMINIUM                                                        No. 43157 - -II
                                                                                       2
HOMEOWNERS ASSOCIATION, a
Washington non -
               profit corporation,


       Appellant and Cross -Respondent,


       V.



MICHAEL K. KUEHNER and BRENDA W.                                        PUBLISHED OPINION
KUEHNER, husband and wife,


                       and Cross-


       WORSwiCK, C. J. —         Granville Condominium Homeowners Association (HOA) appeals


the superior court' s summary judgment dismissal of their action for unpaid monthly operating

and maintenance assessments against Michael and Brenda Kuehner, who lived in a unit rent free

in satisfaction of a debt. The Kuehners cross appeal the superior court' s denial of their request

for attorney fees.

        The HOA argues that the superior court erred in granting summary judgment to the

Kuehners because ( 1)    under   the terms of the " Granville Condominium Declaration" ( the


Declaration), the Kuehners should be held responsible for the amount of unpaid assessments


                                          Casey         Gwen Ingels'   unit; ( 2)   under the Washington
accrued   during   their occupancy   of           and




Condominium Act,       ch.   64. 34 RCW, the Kuehners       should   be held jointly     and   severally liable   with
No. 43157 -2 -II



the Ingels      for   all unpaid assessments; (   3) the Kuehners should be required to pay the unpaid

assessments under a theory of quantum meruit; and (4) under the terms of the Declaration, the

HOA should be awarded reasonable attorney fees for having to seek judicial enforcement of the

terms of the Declaration. The Kuehners argue that the superior court should have awarded them


attorney fees because the HOA' s case presented no fairly debatable issues and was therefore

frivolous.


             Because neither the Declaration nor the Washington Condominium Act supports the


HOA' s claims, we affirm the superior court' s summary dismissal of their case. In addition,

because the issue         presented   by this   case —   whether a tenant -at -will may be held liable for a

condominium owner' s           delinquent   common           operating   and maintenance expense assessments — is




one of first impression in Washington, we hold that the superior court did not act in a manifestly

unreasonable manner in denying attorney fees to either party; therefore, we affirm the superior

court' s denial of attorney fees to both parties.

                                                              FACTS


             The Kuehners lent the Ingels over $ 100, 000 for business projects. When the Ingels were


unable to timely repay the loan, they' "came to an arrangement" with the Kuehners: The Ingels

would satisfy their debt by allowing the Kuehners to live in the Ingels' condominium unit rent

free. Clerk' s Papers ( CP) at 98. The parties did not record the terms of this arrangement or


execute a lease agreement. However, it is undisputed that the Kuehners did not pay the Ingels
                                                         l
     or   the HOA) to live in the     condominium.




 1
     Presumably, the Kuehners deducted the reasonable monthly rent from the debt owed by the
Ingels: Michael Kuehner was " under the impression that the use of the condominium was in
trade for the debt owed."          CP at 99.


                                                                 2
No. 43157 -2 -II



         At the time the parties made this arrangement, the HOA already had recorded a lien under

RCW 64. 34.
                3642

                        and the terms of the Declaration against the Ingels' unit for $3, 555. 22 in

unpaid assessments related to condominium common operating expenses, such as utilities. The

record does not reflect that the Kuehners knew of the lien when they agreed to the arrangement

with the Ingels.


         In October 2010, the Kuehners moved into the Ingels' condominium. Despite the lien on

the unit and the lack of a written lease agreement, HOA member Beaver Brinkman provided the

Kuehners with all necessary keys and a garage door opener for the Ingels' unit. Brinkman did

not discuss the Ingels' unpaid HOA dues at this time or indicate that the Kuehners would be

responsible for such dues during the term of their tenancy.

         A few months after they moved in, Brinkman approached the Kuehners about the Ingels'

unpaid HOA assessments. He requested that the Kuehners " make the payments because a

number of owners had not been paying the association dues [ and] that utilities and other

maintenance         items   would   be   shut off   if the   assessments weren'   t   paid."   CP at 99. The Kuehners


made partial payments on a voluntary basis " based upon [ Brinkman' s] representations ...

regarding the potential to have utilities, such as garbage and elevator services shut off on the

premises."     CP at 99. The HOA did not record a lien against the Ingels' unit, the Kuehners, or


the Ingels for the remaining unpaid assessments.


2
    RCW 64. 34. 364( 1) provides that a condominium association " has a lien on a unit for any
unpaid assessments levied against a unit from the time the assessment is due."

3 RCW 64. 34.200( 1) provides that a " condominium may be created pursuant to [ the Washington
Condominium Act] only               by recording     a   declaration." In the event of a conflict between the
provisions of an HOA' s bylaws and a condominium declaration, the declaration prevails " except
to the   extent     the declaration is inconsistent          with [the   Washington Condominium Act]." RCW
 64. 34. 208( 3).
No. 43157 -2 -II



        In November 2011, the HOA filed a complaint for money due against the Kuehners in

superior court. The HOA did not include the Ingels as defendants. The HOA admitted that the


Ingels own the condominium, that the Kuehners were not paying rent to occupy the unit, and that

the Ingels were delinquent in their assessment payments in the amount of $7, 780. 08 at the time

the Kuehners   began occupying the Ingels'            condominium.         The HOA     argued   that "[ e] ven though



the defendants Kuehner are not owners of the unit and not technically members of the [ HOA],

they have been utilizing and consuming the utilities and services made available to them as

occupants"   and, as a result, "   are indebted to the [ HOA] in the amount of $5, 671. 80 for unpaid

assessments ...     during the   period of       their occupancy."      CP at 3 -4


         The HOA requested a judgment for the $ 5, 671. 80 the Kuehners allegedly owed, in

addition to a " judgment in the amount of $7, 780. 08, plus interest owed by owners [ the Ingels] for

the period of time prior to defendants' occupancy of the premises, provided that said amount

does   not exceed   the   amount of reasonable rent owed          by the    defendants to   said owners.".   CP at 5.


In their answer to the complaint, the Kuehners maintained that the HOA " has sued the incorrect

party." CP at 8.


         On December 20, the HOA filed               a motion   for   partial   summary judgment.'     The HOA


argued that the Declaration " is a recorded document and therefore constitutes notice to the


public, including defendants, of the obligation to pay the monthly assessments to the

homeowners     association."     CP   at   13.    The HOA also argued that under RCW 64. 34. 364( 12), the




  The HOA' s motion for partial summary judgment did not address its claim that the Kuehners
should pay the $7, 780. 08 owed by the Ingels for assessments that had accrued prior to the
Kuehners' occupancy.

                                                            M
No. 43157 -2 -II


                                                                                             5
Kuehners     and   Ingels   should   be held jointly liable for the    unpaid assessments.       Finally, the HOA

argued that on the basis of quantum meruit, the Kuehners should be liable for the outstanding
                                                                 6
assessments accrued         during their   occupancy   period.




          Before the hearing on the HOA' s summary judgment motion, the Kuehners filed a

motion     to dismiss   under   CR 12( b)( 6).   7 The Kuehners argued that while the Declaration is a

recorded real property instrument, it does not establish contractual privity between the HOA and

the Kuehners and, accordingly, the HOA should be seeking the outstanding assessments from the

Ingels. In addition, the Kuehners argued that the only appropriate remedy an HOA may pursue

against a   tenant   for outstanding     assessments   is   governed   by   RCW 64. 34. 364( 10),   which




provides,




           From the time of commencement of an action by the association to foreclose a
           lien for nonpayment of delinquent assessments against a unit that is not occupied
           by the owner thereof, the association shall be entitled to the appointment of a
           receiver to collect from the lessee thereof the rent for the unit as and when due. If
           the rental is not paid, the receiver may obtain possession of the unit, refurbish it
           for rental up to a reasonable standard for rental units in this type of condominium,
           rent the unit or permit its rental to others, and apply the rents first to the cost of
           the receivership and attorneys' fees thereof, then to the cost of refurbishing the
           unit, then to applicable charges, then to costs, fees, and charges of the foreclosure
           action, and   then to the    payment of     the delinquent       Only a receiver
                                                                            assessments.


           may take possession and collect rents under this subsection, and a receiver shall
           not be appointed less than ninety days after the delinquency. The exercise by the




5
    RCW 64. 34. 364( 12),
                        discussed more fully below, provides that in a voluntary conveyance of a
unit, the grantee and grantor are jointly liable for unpaid assessments.

6 The HOA also argued that it was entitled to reasonable attorney fees.

    As                fully below, although filed as a motion to dismiss under CR 12( b)( 6), it is
         explained more

clear that the superior court treated the Kuehners' motion as one for summary judgment under
CR 56( c): The court considered matters outside the pleadings, including the Declaration and the
 other evidence submitted supporting and responding to the HOA' s motion for summary
judgment.
No. 43157 -2 -II



           association of the foregoing rights shall not affect the priority of preexisting liens
           on the unit.



           On February 3, 2012, the superior court heard argument on both motions. After

explaining that it had looked at the statutes in question, the Declaration, and the parties' motions

and responses, the court ruled that the assessment " obligation is that of the owner, not the

tenant."    Report   of   Proceedings ( RP) ( Feb. 3, 2012) at 16. The court then granted the Kuehners'


motion$ but did not award attorney fees because it did not find that the HOA' s suit was frivolous

or advanced without reasonable cause.




           The HOA now appeals, arguing that the superior court erred in failing to grant its motion

for partial summary judgment and in granting the Kuehners' dismissal motion. The Kuehners

cross appeal the superior court' s denial of attorney fees.

                                                         ANALYSIS


                                                1. STANDARD OF REVIEW


           As a preliminary matter, while the superior court' s order of dismissal states that it granted

the Kuehners'     motion     to dismiss " based        upon   CR 12( b)( 6),"    it is clear from the record that the


court considered matters beyond the face of the complaint and outside the pleadings, including

the Declaration. CP         at   204. See,   e. g.,   RP ( Feb. 3, 2012)   at   14 ( " I   have also looked very closely

at   the declaration, in    particular,   the pertinent sections that apply. "). Because "[ a] motion to



dismiss for failure to state a claim is treated as a motion for summary judgment when matters

outside    the pleading    are presented      to   and not excluded     by   the   court,"    we treat the Kuehners' CR




8
 The superior court did not explicitly deny the HOA' s summary judgment motion. However,
because granting the Kuehners' dismissal motion was dispositive, the superior court effectively
denied the summary judgment motion sub silentio.

                                                                G
No. 43157 -2 -II



12( b)( 6)   as a motion   for summary judgment. Sea -Pac Co.         v.   United Food & Commercial


Workers Local Union 44, 103 Wn.2d 800, 802, 699 P. 2d 217 ( 1985).


         We review a superior court' s summary judgment order de novo. Torgerson v. One

Lincoln Tower, LLC, 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009).                 Summary judgment is

appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the

absence of any genuine issues of material fact, and the moving party is entitled to judgment as a

matter of     law. CR 56( c).   A material fact is one on which the outcome of the litigation depends


in whole or in part. Atherton Condo. Apartment -Owners Ass' n Bd. ofDirs. v. Blume Dev. Co.,

115 Wn. 2d 506,, 516, 799 P. 2d 250 ( 1990).         Ina summary judgment motion, the moving party

bears the initial burden of showing the absence of an issue of material fact. See, e. g., LaPlante v.

State, 85 Wn.2d 154, 158, 531 P. 2d 299 ( 1975). "            If the moving party is a defendant and meets

this initial showing, then the inquiry shifts to the party with the burden of proof at trial, the

plaintiff. If, at this point, the plaintiff `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,' then the trial   court should grant   the   motion."   Young v. Key Pharm.,

Inc., 112 Wn.2d 216, 225, 770 P. 2d 182 ( 1989) ( footnote           omitted) (   quoting Celotex Corp. v.

Catrett, 477 U. S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986)). "[             A] complete failure of


proof concerning an essential element of the nonmoving party' s case necessarily renders all other

facts immaterial."      Celotex, 477 U.S. at 323.


                             II. THE GRANVILLE CONDOMINIUM DECLARATION


             The HOA argues that under the Declaration' s terms, the Kuehners were obligated to pay

monthly assessments levied against the Ingels' condominium. Because the Declaration makes

these assessments the unit owners' personal obligation, we disagree.

                                                          7
No. 43157 -2 -II



             A condominium declaration is like a deed, the review of which is a mixed question of

law   and    fact." Lake v. Woodcreek Homeowners Ass' n, 169 Wn.2d 516, 526, 243 P. 3d 1283


 2010).      The factual issue is the declarant' s intent, which we discern from the face of the

declaration; the declaration' s legal consequences are questions of law we review de novo. Lake,

169 Wn.2d at 526. Here, section 16( f) of the Declaration states,


            Each Unit Owner shall be obligated to pay Assessments...

                     No Unit Owner may exempt himself from liability for payment of
            Assessments, monetary penalties, and other fees and charges levied pursuant to
            the Declaration by waiver or nonuse of any of the Common Elements and
            facilities or by the abandonment of his or her Unit.

CP    at   132 -33.   Section 1 l ( states,
                                   b)


            An Owner of any Unit may lease or rent his or her Unit for any residential
            purpose ( except hotel or transient purposes) at any time subject to the provisions
            of this Declaration. Each lease or rental agreement shall be in writing and by its
            terms shall provide that the terms of the lease or rental agreement are subject in
            all respects to the provisions of this Declaration and the Bylaws of the
            Association, and all rules and regulations promulgated thereunder. The
            Association shall not consent to any lease, rental agreement or sublease, the effect
            of which will result in non -compliance with this Section.


CP at 118. And section 16( k) states,


            Rental Units. If a Unit is rented by its Owner, the Board may collect and the
            Tenant shall be obligated to pay over to the Board so much of the rent for such
            Unit as is required to pay any amounts due for Assessments.

CP at 134.


            The HOA appears to argue that when taken together, these provisions imputed liability to

the Kuehners for the Ingels' unpaid common expense condominium assessments. But section

 16( f) contains no provision that the owner' s tenant is obligated to pay assessments, just the

owner. Additionally, section 11( b) is inapplicable here because there was no written rental

agreement.        The HOA     could   have but did   not   demand that the Ingels   execute a written   lease that
No. 43157 -2 -II


complied with section    11( b).     And section 16( k) is inapplicable because the Kuehners did not pay

any rent, so there was no rent for the HOA to collect.

        Thus, by the Declaration' s clear terms, the obligation to pay monthly assessments

belongs solely to the unit owner. This obligation cannot be imputed to the Kuehners.

Accordingly, the HOA' s argument that the Kuehners were liable for the monthly assessments

lacks merit.


                                       III. JOINT AND SEVERAL LIABILITY


        The HOA    next argues       that   under   RCW 64. 34. 364( 12), the Kuehners should be held


jointly and severally liable (with the Ingels) for unpaid assessments related to the Ingels' unit.

Because the arrangement between the Kuehners and the Ingels does not involve a " voluntary

conveyance" of property, we disagree.

        RCW 64. 34. 364( 12) provides,


        In addition to constituting a lien on the unit, each assessment shall be the joint and
        several obligation of the owner or owners of the unit to which the same are
        assessed as of the time the assessment is due. In a voluntary conveyance, the
        grantee of a unit shall be jointly and severally liable with the grantor for all
        unpaid assessments against the grantor up to the time of the grantor' s conveyance,
        without prejudice to the grantee' s right to recover from the grantor the amounts
        paid by the grantee therefor. Suit to recover a personal judgment for any
        delinquent assessment shall be maintainable in any court of competent jurisdiction
        without foreclosing or waiving the lien securing such sums.

        The statute fails to define " voluntary conveyance" and neither party offers a definition of

the term. However, when read in context with the rest of RCW 64. 34. 364, the meaning is clear.

RCW 64. 34. 364( l 1) states that " the holder of a mortgage or other purchaser of a unit who

obtains the right of possession of the unit through foreclosure shall not be liable for assessments

    that   became due   prior   to   such right   of possession." In   contrast,   RCW 64. 64. 364( 12)   explains
No. 43157 -2 -II



what happens in situations where conveyance of a unit is made voluntarily, as through a gift or

sale.



         Here, it is undisputed that the arrangement between the Ingels and Kuehners did not

involve a conveyance of the condominium under RCW 64. 34. 364. The Kuehners were mere

tenants -at -will. RCW 64. 34.364( 12) is inapplicable to this situation and this argument lacks

merit.




                                              IV. QUANTUM MERUIT


         The HOA    next argues     that "[   e] ven if [
                                                        the] Kuehners were not obligated by their

knowledge of the recorded requirement of payment of the monthly homeowner' s dues, or the

Condominium Act, they are obligated to pay for the benefits provided to them on the basis of
                 9
quantum meruit. "     Br.   of   Appellant    at   8(   bolding   omitted).   But the HOA fails to adequately

explain this assignment of error or provide us with reference to any authority supporting its

position.




         Quantum meruit " is the method of recovering the reasonable value of services provided

under a contract   implied in fact."       Young v. Young, 164 Wn.2d 477, 485, 191 P. 3d 1258 ( 2008).

A contract implied in fact


          is an agreement depending for its existence on some act or conduct of the party
          sought to be charged and arising by implication from circumstances which,


9
    The HOA states that quantum meruit " describes the extent of liability on a contract implied by
law."    Br. of Appellant at 8. This is incorrect. Unjust enrichment claims are claims involving
contracts implied in law (sometimes called quasi contracts) whereas quantum meruit claims
involve contracts implied in fact. Chandler v. Wash. Toll Bridge 4uth., 17 Wn.2d 591, 600, 137
P. 2d 97 ( 1943). " The two terms are distinct approaches founded on discrete legal theories."
Young v. Young, 164 Wn.2d 477, 483, 191 P. 3d 1258 ( 2008). Because the HOA fails to
 adequately develop a claim for unjust enrichment in its briefs, we deem any such claim
 abandoned.    Kittitas   County   v.   Kittitas   County    Conservation Coal.,         Wn.   App. ,   308 P. 3d
 745, 752 ( 2013) ( " Unsubstantiated assignments of error are deemed abandoned. ").


                                                              10
No. 43157 -2 -II



           according to common understanding, show a mutual intention on the part of the
           parties to contract with each other. The services must be rendered under such
           circumstances as to indicate that the person rendering them expected to be paid
           therefor, and that the recipient expected, or should have expected, to pay for them.

Johnson        v.    Nasi, 50 Wn.2d 87, 91; 309 P. 2d 380 ( 1957). "[ T] he elements of a contract implied


in fact   are (      1) the defendant       requests work, (    2) the plaintiff expects payment for the work, and


 3) the defendant knows                or should     know the   plaintiff expects payment   for the   work."   Young, 164

Wn.2d at 486.


           Here, the HOA fails to explain the circumstances " which, according to common

understanding, show a mutual "
                             intention on the part of the parties to contract with each other."

Johnson, 50 Wn.2d               at   91.   The HOA also fails to cite any authority for the proposition that a

tenant -at -will may be liable under a theory of quantum meruit for common expense assessments
                                                                                                                10
owed      by    his   or   her landlord. Accordingly,       we refrain   from further addressing this issue.         RAP


10. 3(   a)(   6);   Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).

                                                        V. ATTORNEY FEES


           Both parties argue that they were entitled to an award of attorney fees below and are

entitled to attorney fees on appeal. Although the HOA' s suit against the Kuehners fails in light

of our interpretation of the provisions of the Declaration and the Washington Condominium Act,

we conclude that the superior court did not err in denying an award of attorney fees to the

Kueheners or the Ingels below. Because this is a matter of first impression, it was a debatable


io
     The HOA           argues   that "[    i] t is hard to imagine a scenario where someone living in a rented
residential unit can claim                 to have   no liability for the utilities and services they are using." Br.   of

Appellant at 9. But this arrangement is actually quite common. In many residential leases,
utilities are included in the cost of the rent. Here, because the Kuehners and Ingels did not
reduce their arrangement to writing, we have no way of knowing how the. parties intended to
handle the condominium common expenses. Nevertheless, the HOA has the burden of
adequately explaining this assignment of error and, here, they have failed to meet that burden.
                                                                    11
No. 43157 -2 -II


issue of law whether a tenant - -will could be held liable for a condominium owner' s delinquent
                              at

HOA assessments as no Washington case has addressed this scenario. Thus, although we reject


the HOA' s arguments, we do not believe the HOA' s suit was frivolous: the superior court did

not err in denying attorney fees below, and we refrain from awarding either party attorney fees

on appeal.



          A. ATTORNEY FEES BELOW


          Under RCW 4. 84. 185, we review a superior court' s denial of a request for reasonable


attorney fees and costs for an abuse of discretion. Bldg. Indus. Ass' n of Wash. v. McCarthy, 152

Wn.    App.    720, 745, 218 P. 3d 196 ( 2009). A court abuses its discretion when its decision is


manifestly     unreasonable or     based   on untenable grounds.       Dix   v.   ICT   Grp., Inc.,   160 Wn.2d 826,


833, 161 P. 3d 1016 ( 2007).        A court necessarily abuses its discretion when basing its decision on

an erroneous view of the law or when applying an incorrect legal standard: Dix, 160 Wn.2d at

833.


          When an action is frivolous, RCW 4. 84. 185 authorizes the superior court to award the


prevailing party reasonable expenses, including attorney fees. Bldg. Indus. Ass' n, 152 Wn. App.

at   745. "   A lawsuit is frivolous if, when considering the action in its entirety, it cannot be

supported      by   any   rational argument   based in fact   or   law." Wright    v.   Dave Johnson Ins. Inc., 167


Wn. App. 758, 785, 275 P. 3d 339, review denied, 175 Wn.2d 1008 ( 2012).

          Here, the HOA' s main argument below was that under either the Declaration' s terms or

the provisions of the Washington Condominium Act, the Kuehners should be held liable for the

Ingels' unpaid common expense assessments. While this was an incorrect interpretation of both

the Declaration and the Washington Condominium Act, we do not believe this argument to be a


frivolous one. There is a paucity of Washington law covering the relationship between

                                                          12
No. 43157 -2 -II



condominium tenants and the HOAs that pay for and operate such buildings. Accordingly, we

are not convinced that this lawsuit presented " no debatable issues and [ was] so devoid of merit

that no possibility      of reversal exist[ ed]."       W.R.P. Lake Union Ltd. P' ship v. Exterior Servs., Inc.,

85 Wn.    App. 744,      752, 934 P. 2d 722 ( 1997). The superior court did not abuse its discretion in

                                                                      11
failing   to   award   the Kuehners attorney         fees below.


          B. ATTORNEY FEES ON APPEAL


          The Kuehners       argue   that "[   b] ecause Granville HOA can still cite no statute, case law, or


contract which grants them an action against the Kuehners, this Court should grant [ them]


attorney fees     and costs   incurred in      defending this     appeal" under      RAP 18. 9( a).   Br. of Resp' t at

25 -26. We disagree.


          RAP 18. 9( a) allows us to award sanctions, such as a grant of attorney fees and costs to an

opposing party,        when a   party brings     a   frivolous   appeal. "[    A] n appeal is frivolous if there are no


debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit

that there was     no reasonable     possibility      of reversal."        Streater v. White, 26 Wn. App. 430, 435,

613 P. 2d 187 ( 1980). "[       A]n appeal that is affirmed simply because the arguments are' rejected is

not   for that   reason alone    frivolous." Carillo v. City of Ocean Shores, 122 Wn. App. 592, 619, 94




11 The Kuehners also argue that under RCW 64.34.455, the superior court should have awarded
them reasonable attorney fees in this action. RCW 64. 34.455 provides,
       If a declarant or any other person subject to this chapter fails to comply with any
       provision hereof or any provision of the declaration or bylaws, any person or class
          of persons adversely affected by the failure to comply has a claim for appropriate
          relief. The court, in an appropriate case, may award reasonable attorney' s fees to
          the prevailing party.
This statute grants the superior court discretion as to whether to award reasonable attorney fees,
and we do not find the superior court abused its discretion when it did not award attorney fees
under this statute.
                                                                 13
No. 43157 -2 -II



P. 3d 961 ( 2004). In addition, we resolve all doubts to whether an appeal is frivolous in favor of


the appellant. Camer v. Seattle Sch. Dist. No. 1, 52 Wn. App. 531, 540, 762 P.2d 356 ( 1988).

          Here, as explained above, the HOA incorrectly interpreted its own Declaration and

certain provisions of the Washington Condominium Act. Nevertheless, this appeal did present

an   issue   of   first impression— whether   a tenant -at -will may be held liable for a condominium

owner' s delinquent common operating and maintenance expense assessments. As a general rule,

we will not find a case frivolous when it presents an issue of first impression. See, e. g., deckle v.

Crotty,      120 Wn.   App.   374, 387 -88, 85 P. 3d 931 ( 2004).   Seeing no reason to depart from that

rule in these circumstances, we refrain from awarding either party attorney fees on appeal.

          We affirm.




                                                                            C. J.




                                                         14
