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                                                                                            2013 DLC 17         0,8: 49
      IN THE COURT OF APPEALS OF THE STATE OF W.kSHIN                                               TO
                                                                                                          gyp+ SHIM to   N

                                               DIVISION II
                                                                                                         E N iY
ANDY & SUE WHITWORTH, Husband and
Wife; DOUG & STACY YEAMAN, Husband
and   Wife; ROBERT & PHYLLIS NELSON,
Husband      and   Wife; BRENT & CONNIE
DAVIS, Husband         and   Wife; NICK & JOANNE
SPRINGER, Husband and Wife; KARL &
MARSHA MICHELS, Husband and Wife;
DOUG & YOLANDA RAUCH, Husband and
Wife; HOWARD & STACEY ALLINGTON,                                            No. 42687 -1 - II
Husband      and   Wife; MARVIN & HELEN
TAYLOR, Husband and Wife; RANDY &                                  UNPUBLISHED OPINION
JODI SPARKS, Husband and Wife; MORALL
  WENDI OLSON, Husband and Wife; DAVE
  CRISTA NEAL, Husband and Wife; FELIX
  JOLENE HARO, Husband and Wife; JEFF
  AMY HULSE, Husband and Wife;
BRENDAN & ANGIE HEATH, Husband and
Wife; GILBERT & CAROLEE ORNELAS,
Husband and Wife; and CAROLEE ORNELAS
as Trustee of the CINDY MORSE LIVING
TRUST,
                                   Respondents.


        V.



DAVE' S VIEW, LLC, a Washington limited
liability company; DAVE' S VIEW AT
MARTIN' S BLUFF HOMEOWNERS'
ASSOCIATION, a Washington non -
                              profit
corporation, LYNDA S. WILSON, an
individual; and CHAD WILSON, a married
man,

                                   0


        MAXA, J. — Dave'       s View LLC, Dave' s View at Martin' s Bluff Homeowners' Association,

Lynda Wilson and Chad Wilson, the developers of a five -phase housing development, appeal the

trial court' s bench trial rulings that ( 1) the " Development Period" ended and Dave' s View was

obligated    to turn   over control of   the homeowners'   association   to lot   owners   in Phase 1    once
No. 42687 -1 - II



Dave'   s   View had     sold all   but two lots in that   phase, (   2) the homeowners' association had


authority to collect assessments for and a duty to maintain only those common areas associated

with Phase 1 of the development, and ( 3) neither the declaration of covenants, conditions and

restrictions ( CC &Rs) nor the law authorized the imposition of liens against the lot owners'

properties for failure to pay past due assessments. We affirm.

                                                           FACTS


Establishment ofDave 's View at Martin' s Bluff

            Dave' s View LLC, was the developer of a 400 -acre tract of land in Kalama known as

Dave' s View at Martin' s Bluff. Chad Wilson and his mother Lynda Wilson' held all of the

controlling interest in and were the managing members of Dave' s View LLC. In 2003, Lynda

filed articles of incorporation for a homeowners' association for Phase 1 of Dave' s View at

Martin' s Bluff. The homeowners' association' s board of directors consisted of Lynda, Chad, and

Chad' s wife, Michelle Wilson.


            On April 20, 2004, Dave' s View recorded a plat for the development, which provided for

118 lots to be developed in five phases. Dave' s View also filed CC &Rs that provided that

Dave' s View was the declarant and owner of a subdivision known as " Dave' s View at Martin' s

Bluff, Phase 1"     according to a recorded plat. Clerk' s Papers ( CP) at 22. The CC &Rs defined the

lots in Phase 1     as   the "   Property"   and   defined " plat"   as   the   recorded plat   for Phase 1.   CP at 22,


24. The CC &Rs further provided that " Phases 2, 3, 4 and /or 5 may be added to the Property by

Declarant      at some    future date."      CP at 22.




  Because this case involves multiple family members who share the same last name, we refer to
the parties by their first names for clarity. We intend no disrespect.

                                                               1)
No. 42687 -1 - II



          The CC &Rs designated                  a "   Development Period ", defined as " that period of time that the


Declarant holds title to at least two ( 2) Lots in Phase 1, 2, 3, 4 or 5 for purposes of development,

sale or resale."           CP at 24. The CC &Rs defined " Lots" as " 35 individual tracts of real property

comprising Phase 1 of Dave' s View at Martin' s Bluff (along with subsequent additional lots

                                          Property by       Declarant)           divided    by deed from the         Declarant."    CP
which     may be       added     to the                                     as




at 24. The CC &Rs allowed Dave' s View to modify the CC &Rs at any time before the end of the

Development Period,


           Section 26 of the CC &Rs provided for a homeowners' association for Dave' s View at

Martin' s Bluff:


           In order to enforce the provisions of this Declaration, there shall be formed the
           Association which shall be organized in a democratic manner and become
           effective at a meeting of the Designated Owners of the Lots within twenty - four
            24) months after the date of recordation of the plat of Dave' s View at Martin' s
           Bluff      or    after   Declarant has         sold all      but two ( 2) Lots,       whichever        is later.   The

           Declarant shall arrange for the calling of the first meeting of the Association. The
           Association           shall    elect    such     officers      and        establish   such    bylaws,      rules   and

           regulations           for the       operation of the Association and enforcement of this
           Declaration that are reasonably required.

CP   at   31.       The homeowners' association, formed in 2003, charged and collected dues and special

assessments from the Phase 1 lot owners.


           In January 2006, Dave' s View filed new CC &Rs for Phase 2 of Dave' s View at Martin' s

Bluff. However, Dave' s View did not take any affirmative action to add the Phase 2 properties
                                                                                                              2
to Dave'        s   View   at   Martin'   s   Bluff, Phase 1,     as    the Phase 1 CC &Rs         allowed.




 2 In February 2009, Dave' s View also filed an amended declaration of CC &Rs that purported to
 replace    those      filed in 2004 for Phase 1            and   in 2006 for Phase 2,           and   that added a Phase 3.        The

 new declaration of CC &Rs stated that it applied to all lot owners within Dave' s View at Martin' s
 Bluff. However, the trial court ruled on summary judgment that this amended declaration was
 unenforceable as against                the Phase 1      lots,   and   Dave'    s   View does    not assign error      to this ruling.
No. 42687 -1 - II



          By January      31, 2006, Dave'      s   View had      sold all   but two lots in Phase 1.     However, Dave' s


View did not turn over control of the homeowners' association to the Phase 1 lot owners at that

time.


Phase I Lot Owners' Lawsuit and Trial


          In 2008, 17 Phase 1 lot owners filed a complaint against Dave' s View, LLC, Dave' s

View at Martin' s Bluff Homeowners' Association, Lynda Wilson, and Chad Wilson. The lot

owners claimed that the Wilsons in their capacity as the homeowners' association' s board of

directors violated chapter 64. 38 RCW and the CC &Rs because they failed to call homeowners'

meetings to present or ratify budgets, failed to hold annual meetings, failed to make meetings of

the board of directors subject to observation and participation by the homeowners, failed to make

all homeowners' association records available upon demand, and improperly collected dues and

special assessment fees that were not approved by a properly elected board of directors or

substantiated    by   a   budget   ratified   by the   members.       The lot owners requested that the trial court


order the defendants to hold the first annual meeting of the homeowners' association and to

produce for inspection all homeowners' association records. Finally, the lot owners requested a

judgment for unauthorized assessments and for attorney fees.

           The lot owners moved for partial summary judgment. In December 2010, the trial court

entered a    declaratory judgment holding              in   relevant part: (   1) the original declaration of CC &Rs


was     the only instrument controlling Phase 'l              and could not     be   changed   unilaterally, ( 2) the


provision allowing Dave' s View to modify the CC &Rs during the Development Period was

illusory   and unenforceable as against             the Phase 1 lots, ( 3)     Phase 1 assessments were for the


purpose of     Phase 1     maintenance and repair costs, (            4) road and /or drainage maintenance /repair


 costs must be assessed to Phase 1 lots at the rate of 1/ 118 per lot, and ( 5) under section 26 of the

                                                                  M
No. 42687 -1 - II


CC &Rs the development period ended and the lot owners had the right to form a homeowners'

association as of January 31, 2006, the date that all but two lots in Phase 1 were sold.

             The case proceeded to a bench trial on the remaining issues. After trial, the trial court

entered findings of fact, including the following:

              1) the Development Period ended upon the sale of all but two of the lots in Phase 1,

which occurred on January 31, 2006 ( finding of fact 3);

             2) Dave' s View reserved the.right to add property to the homeowners' association but

did not do so ( finding of fact 4);

              3) the CC &Rs did not provide for an extension of the " Development Period" for Phase 1

 finding of fact 5);

              4) the homeowners' association existed to collect assessments and maintain the common


areas shown on the Phase 1 plat (finding of fact 6);

              5) the homeowners' association had a duty to maintain common areas delineated on the

Phase 1 plat and the main private road shared by Phases 1, 2 and 3 ( finding of fact 7);

              6) Dave' s View should have transferred control over the homeowners' association to the


lot owners as of January 31, 2006 ( finding of fact 8);

              7) proper rules for enforcement and appeal were required in order to record liens against

lot    owner    titles ( finding   of   fact 22);   and




              8) there was no authority to record notices of past due assessments against lot owners,

which were treated like liens against their property ( finding of fact 31).

             Consistent with these findings, the trial court ordered Dave' s View to call a meeting to

 elect a board of directors for the homeowners' association and to turn over to the elected board

 all   the   association' s records, accounts, and        funds   collected   from Phase 1 lot   owners after   January
No. 42687 -1 - II



31, 2006. The trial court also ordered Dave' s View to pay damages to two lot owners against

whose property Dave' s View filed liens and to sign a release clearing the titles to those

properties and to clear the titles to the properties against which Dave' s View filed notices of past

due assessments. The trial court reconsidered and affirmed its declaratory judgment entered on

summary judgment in December 2010.

            Dave' s View appeals the trial court' s ruling that the development period ended once all

but two Phase 1 lots were sold and assigns error to findings of fact 3 through 8, 22 and 31.

Dave' s View does not appeal the trial court' s partial summary judgment order.

                                                        ANALYSIS


            Dave' s View' s primary argument is that that the trial court erred in ruling that the

Development Period ended on January 31, 2006, and that control of the homeowners' association

should have been turned over to the Phase 1 lot owners as of that date, as set forth in findings of

                     3
fact 3    and   8.        Dave' s View also argues that the trial court erred in making the following

findings: ( 1)           Dave' s View failed to add property to the Phase 1 development (finding of fact 4),

 2) the CC& Rs did not provide for any extension of the development period (finding of fact 5),

     3) the homeowners' association had authority to collect assessments for and a duty to maintain

only those      common areas associated with           Phase 1 ( findings   of   fact 6   and   7), ( 4) there could be no


recordings against lot owner titles without proper rules for enforcement and appeal ( finding of




 3
     In addition to assigning error to the findings, Dave' s View submits the following assignment of
 error, "   Trial        court   terminated the Development ` Control' Period      without      legal authority." Br. of
 Appellant      at       1.   Because we hold that findings of fact 3 and 8 should be treated as conclusions of
 law, this assignment duplicates the assignment of error to these findings.
                                                              6
No. 42687 -1 - II



fact 22), and ( 5) neither the CC &Rs nor the law authorized the imposition of liens against the lot


owners' property for failure to pay past due assessments ( finding of fact 31). 4
         We hold that the trial court did not err in entering these findings of fact and intertwined

conclusions of law.


A.       STANDARD OF REVIEW


         We review a trial court' s decision following a bench trial by asking whether substantial

evidence supports the trial court' s findings of fact and whether those findings support the trial


court' s conclusions of law. Casterline v. Roberts, 168 Wn. App. 376, 381, 284 P. 3d 743 ( 2012).

Unchallenged findings of fact are verities on appeal. In re Estate ofJones, 152 Wn.2d 1, 8, 9' )

P. 3d 147 ( 2004).


         Some of the trial court' s rulings labeled as " findings of fact" to which Dave' s View


assigns error actually are conclusions of law (sometimes mixed with factual findings) because

they required the trial court to analyze the CC &Rs to determine their legal effect. We review

conclusions of law de novo, even if they are mislabeled as findings of fact. Hegwine v.

Long-view   Fibre Co., 132 Wn. App. 546, 556, 132 P. 3d 789 ( 2006),    aff'd, 162 Wn.2d 340, 172

P. 3d 688 ( 2007).


B.       DURATION OF DEVELOPMENT PERIOD /CONTROL OVER ASSOCIATION


         Dave' s View interprets the CC &Rs as allowing it to maintain control over the

homeowners' association until all but two lots in all five phases of the development were sold.

Therefore, Dave' s View argues that the trial court erred when it concluded that the, Development

Period ended on the date that all but two lots in Phase 1 were sold (finding of fact 3) and that


4
    Dave' s View also raises several arguments regarding the trial court' s summary judgment order
and additional bench trial findings. However, because it does not assign error to the order and
these findings, we need not consider these arguments. RAP 10. 3( a)( 4).
                                                   7
No. 42687 -1 - II



Dave' s View was obligated to turn over control of the homeowners' association to the Phase 1

lot   owners as of    that   date ( finding   of   fact 8).   Although these rulings were designated as a


findings of fact, because they involve interpretation of the homeowners' association' s governing

documents, they include          conclusions of       law that   we review   de   novo.   We hold that the trial court


did not err in entering these findings and conclusions.

          1.   Principles of Interpretation for CC &Rs


          Chapter 64.38 RCW governs homeowners' associations in Washington. There is no


statute in chapter 64. 38 RCW setting limitations on the period during which a developer may

have control over a development' s homeowners' association. Accordingly, we look to the

development' s governing documents to determine the. duration of Dave' s View' s control over the

homeowners' association. Here, the CC &Rs control the resolution of this issue.


          We apply principles of contract interpretation to interpret provisions in CC &Rs and other

governing documents relating to real estate developments. See, e. g., Roats v. Blakely Island

Maint. Comm'     n,   Inc., 169 Wn.     App.       263, 273 -75, 279 P. 3d 943 ( 2012) ( interpreting


homeowners'      association articles of incorporation,            bylaws    and covenants);    Jensen v. Lake Jane


Estates, 165 Wn.       App.     100, 105, 267 P. 3d 435 ( 2011) (       interpreting restrictive covenant).

Contract interpretation is a question of law that we review de novo. Dave Johnson Ins. Inc. v.


Wright, 167 Wn. App. 758, 769, 275 P. 3d 339, review denied, 175 Wn.2d 1008 ( 2012)

          The purpose of contract interpretation is to determine the parties' intent. Roats, 169 Wn.


App. at 274. To assist in determining intent, we may apply the " context rule" adopted in Berg v.

Hudesman, 115 Wn.2d 657, 666 -69, 801 P. 2d 222 ( 1990). The context rule applies even when


the provision at issue is        unambiguous.         Roats, 169 Wn.    App.   at   274. This   rule " ` allows a court,




while    viewing the    contract as a whole,         to   consider extrinsic evidence, such as      the   circumstances
No. 42687 -1 - II



leading to the execution of the contract, the subsequent conduct of the parties and the

reasonableness of       the   parties'     respective     interpretations.' "    Roats, 169 Wn. App. at 274 ( quoting

Shafer v. Bd. of Trs. ofSandy Hook Yacht Club Estates, Inc., 76 Wn. App. 267, 275, 883 P. 2d

1387 ( 1994)).


        Contractual language generally must be given its ordinary, usual and popular meaning.

Jensen, 165 Wn.      App.      at   105. " An interpretation of a contract that gives effect to all provisions


is favored    over an   interpretation that         renders a provision     ineffective."   Snohomish County Pub.

Transp.   Benefit Area        Corp.   v.   First   Grp. Am.,    Inc., 173 Wn.2d 829, 840, 271 P. 3d 850 ( 2012).


And " `[ w]here     one construction would make a contract unreasonable, and another, equally

consistent with its language, would make it reasonable, the latter more rational construction must

prevail.' "   Better Fin. Solutions, Inc.           v.   Transtech Elec., Inc.,    112 Wn. App. 697, 712 n.40, 51
  3 )
P. d 108 ( 2002) ( quoting          Byrne v. Ackerlund, 108 Wn.2d 445, 453 - 54, 739 P.2d 1138 ( 1987)).

          When interpreting the extent and scope of a homeowners' association' s authority, we

may consider not only the CC &Rs but also all of the corporation' s governing documents,

including deeds, articles of incorporation, and bylaws. Roats, 169 Wn. App. at 274. These are

considered " ` correlated           documents' " and must be construed together as a whole. Roats, 169


Wn. App. at 274 ( quoting Rodruck v. Sand Point Maint. Comm' n, 48 Wn.2d 565, 577, 295 P.2d

714 ( 195.6)).


          If after considering extrinsic evidence a contract provision' s meaning is uncertain or is

subject to two or more reasonable interpretations, the provision is ambiguous and we construe


that ambiguity against the document' s drafter. Riss v. Angel, 80 Wn. App. 553, 557, 912 P. 2d

 1028 ( 1996), aff'd, 131 Wn. 2d 612, 934 P. 2d 669 ( 1997);                    Jensen, 165 Wn. App. at 105.



                                                                  9
No. 42687 -1 - II



         2.        Finding of Fact 3

         Dave' s View assigns error to finding of fact 3 and argues that the trial court erroneously

concluded that the " Development ` Control' Period" ended after Dave' s View sold all but two

lots in Phase 1.         Br.   of   Appellant at 1.       This       finding provided, " The       Development Period ended


twenty -
       four months from the date the Plat for Phase 1 was recorded or upon the sale of thirty-

three   of   the          five lots in Phase 1,
                   thirty -                               which was [         January   31, 2006]."       CP at 370. We hold that


while the CC &Rs certainly are not a model of clarity, the most reasonable interpretation of the

definition of Development Period supports this finding /conclusion.

                   a.     Definition of "Development Period" in CC &Rs


             Section     10)   of   the CC & Rs defines " Development Period" as " that period' of time that the


Declarant holds title to at least two (2) Lots in Phase 1, 2, 3, 4 or 5 for purposes of development,


sale or resale."         CP at 24. But section 1( k) of the CC &Rs defines " Lots" as " 35 individual tracts


of real property comprising Phase 1 of Dave' s View at Martin' s Bluff (along with subsequent

additional lots which may be added to the Property by Declararit) as divided by deed from the

Declarant."         CP   at   24 ( emphasis         added).     Reading the definition of "Development Period"

together with the definition of "Lots" results in a nonsensical provision: the period is " that period

of   time that the Declarant           holds title to      at   least two ( 2) [ of the 35 tracts of property comprising


Phase 1] in Phase 1, 2, 3, 4             or   5."    CP   at   24.    In light   of   the   definition   of "Lots   ", the definition of


 Development Period" is incomprehensible. It is not possible to hold title to property in Phase 1

that is also property in Phases 2, 3, 4 or 5. These two definitions create an inherent ambiguity.

         However, the scope of the CC &Rs helps explain these confusing provisions. The

CC &Rs only apply to Phase I of Dave' s View at Martin' s Bluff (referred to as the " Property ")

CP 22. Recital A of the CC &Rs states that Phases 2, 3, 4 and /or 5 " may" be added to the

                                                                         10
No. 42687 -1 - II



property by the developer. CP at 22. This language suggests that the Development Period

continues while the " Declarant holds title to at least two. ( Lots in Phase 1, 2, 3, 4 or 5" only if
                                                             2)

Phases 2 through 5 have been added to the Property. CP at 24. The trial court found in finding
                                                                                            5
of   fact 4 that Dave'   s   View did   not add   any   other phases   to the   Property.       As a result, we read the


CC &Rs as providing that the Development Period ended once Dave' s View no longer owned at

least two lots in Phase 1.


          Dave' s View disputes this analysis, asserting in oral argument that Phases 2 through 5

automatically were added to the property subject to the CC &Rs. But this argument is

inconsistent with the plain language of the CC &Rs. Recital A states that " Phases 2, 3, 4 and /or 5


may be    added     to the   Property by Declarant      at some   future date."    CP at 22 ( emphasis added).


This provision indicates that whether to add other phases to the property was left to Dave' s

View' s discretion and required some affirmative action by Dave' s View.

               b.      Definition of "Development Period" in Association Bylaws


          We may consider all of a development' s governing documents in interpreting the

CC &Rs. Roats, 169 Wn. App. at 274. Dave' s View adopted homeowners' association bylaws

that defined " Development Period."           However, we do not find the bylaws helpful in interpreting

that term.


          The homeowners' association bylaws contained two different definitions of Development


Period. Article 1. 5 provided a definition identical to section 10) .of the CC &Rs. Article 3. 3

stated a more specific        definition: " The   Dave' s View development period shall mean twenty [ -]


5 As we discuss below, Dave' s View assigned error to this finding but did not support the
assignment with argument. Accordingly, it becomes a verity on appeal. In re Disciplinary
Proceeding against Whitney, 155            Wn.2d 451, 466 -67, 120 P. 3d 550 ( 2005).              In any event, the
evidence supports the finding.

                                                             11
No. 42687 -1 - II



four (24) months from the date of recording the initial Declaration or until the date that all but

two ( 2) of the proposed lots within the Dave' s View plat ( all phases) have been sold, which ever

 sic]    is later." CP     at   193.    This second definition refers to " lots" generically rather than to the

defined term " Lots" and therefore avoids the structural inconsistency of the CC &R definition.

However, the bylaw definitions do not help resolve the question of whether Phases 2 through 5

must be added to the property governed by the CC &Rs in order to factor into the definition of

Development Period.


                      c.   Section 26 of the CC &Rs


              Instead of directly addressing the confusing definition of Development Period, on

summary judgment the trial court turned to section 26 of the CC &Rs:

              Establishment of Association. In order to enforce the provisions of this Declaration,
              there shall be formed the Association which shall be organized in a democratic manner
              and become effective at a meeting of the Designated Owners of the Lots within twenty -
             four (24) months after the date ofrecordation ofthe plat ofDave 's View at Martin' s Bluff
              or after Declarant has sold all but two ( 2) Lots, whichever is later. The Declarant shall
              arrange for the calling of the first meeting of the Association. The Association shall elect
              such officers and establish such bylaws, rules and regulations for the operation of the
                                                                                                                  6
              Association       and enforcement of         this Declaration that   are   reasonably   required.



CP   at      31 (   emphasis added).       In its summary judgment order the trial court defined " Development

Period"        with reference      to   section   26, "   In accordance with the specific provisions of the,

controlling instrument at §26, the Development Period for Phase One concluded 24 months from

recordation of the Plat or when the Developer had sold-all but 2 Lots therein [ January 31, 2006.] "

CP      at   366 ( alteration in       original) ( emphasis added).     After trial, the trial court' s finding of fact 3

was almost identical to the summary judgment finding except for the reference to section 26.



6 The italicized portion of section 26 is similar but not identical to article 33 of the homeowners'
association bylaws.


                                                                   12
No. 42687 -1 - II



           The trial court apparently used section 26 to clarify the meaning of Development Period.

Although that section does not reference the Development Period, it does establish when the

Phase 1 lot owners are authorized to form their own democratically organized homeowners'

association      independent      of   the   association   Dave'   s    View formed before the CC & Rs even were


recorded. The trial court apparently equated the date the Phase 1 lot owners had the right to

control the homeowners' association with the end of the Development Period.

           We agree that section 26 supports the conclusion that the Development Period ended

based on the sale of lots in Phase 1 rather than all five phases. The bylaws vest extensive powers

in the homeowners' association. Dave' s View turning over the ability to exercise these powers

to   an   independent homeowners'             association —   which under Section 26 clearly must occur once all

but two     of   the   lots in Phase 1   are sold —   is inconsistent with Dave' s View retaining similar

powers      during     a   longer Development Period.         Accordingly, by holding that the Development

Period ended based on the sale of lots in Phase 1, we avoid an unreasonable construction of the


CC &Rs. Better Fin. Solutions, 112 Wn. App. at 712 n.40.

                  I        Extrinsic Evidence


           Under the context rule, we may look to extrinsic evidence to assist in interpreting the

CC &Rs. Berg, 115 Wn.2d at 667. However, although Dave' s View briefly mentions the rule, it

does not specifically identify any extrinsic evidence we should consider in determining the

meaning of Development Period. Similarly, although Chad Wilson testified at trial, Dave' s

View provided no citations to his testimony and no argument that Wilson' s testimony should be

 used to interpret the CC &Rs.


            The extrinsic evidence we find most significant is the fact that Dave' s View recorded a

 second declaration of covenants for the lots in Phase 2. Dave' s View established a separate

                                                                   13
No. 42687 -1 - II



development for Phase 2              rather   than adding those        lots to the property —comprised of the lots in


Phase 1 —      subject to the original declaration of covenants. The decision to keep Phase 2 separate

from Phase 1 indicates an intention to end the Phase 1 Development Period once all but two lots

had been sold in Phase 1.


                        Conclusion


          We conclude that based on the considerations discussed above, the most reasonable

interpretation of the CC &Rs is that the Development Period ended once Dave' s View no longer

owned at       least two lots in Phase 1.        One other factor supports our conclusion. The CC &Rs are


confusing and ambiguous regarding the duration of the Development Period. Dave' s View had

the opportunity to use clear language stating when the Development Period would end, but did

not. Accordingly, we resolve the uncertainty created by the CC &R provisions against Dave' s
                        7
View, the drafter.


          3.      Finding of Fact 8

          Dave'    s   View   assigns error     to   finding    of   fact 8,   which provides, "   The Association should


have been turned over to the Phase 1 lot owners -
                                                as                        of   January 31,   2006."   CP at 370. We hold


that the clear language of section 26 and the undisputed evidence regarding the sale of Phase 1

lots supports this finding / onclusion.
                           c

               Section 26 required Dave' s View to permit the homeowners to form a democratically

elected homeowners' association comprised of designated lot owners after Dave' s View " sold all


7
    We   note one possible error         in   finding   of   fact 3.   That finding states that the Development
Period    ended upon        the "         thirty
                                    sale of          three
                                                     -              five lots in Phase 1," which is based on
                                                      of the thirty -

the language in        section      26. CP at 370. The definition of Development Period in the CC &Rs
referred to the period as ending when the Declarant no longer holds title to at least two lots in
Phase 1, which suggests that the period would end upon the sale of 34 rather than 33 of the 35
lots. However, Dave' s View does not argue that finding of fact 3 was in error for that reason,
 and therefore we need not address this difference in language.
                                                                     14
No. 42687 -1 - II



but two ( 2) Lots." CP      at   31.   As noted above, Section 1( k) defines " Lots" as " 35 individual


tracts of real property comprising Phase 1 of Dave' s View at Martin' s Bluff (along with

subsequent additional lots which may be added to the Property by Declarant) as divided by deed

from the Declarant."       CP at 24. Dave' s View did not affirmatively exercise its right to add

additional lots to the property. Therefore, section 26 unequivocally provides that the Phase 1, lot

owners had the right to control the homeowners' association after Dave' s View sold all but two

of the lots in Phase 1, not all but two lots in all five phases. And it is undisputed that Dave' s

View had sold all but two lots in Phase 1 by January 31, 2006.

        We hold that the trial court properly concluded in finding of fact 8 that Dave' s View was

required to turn over control of the homeowners' association to the Phase 1 lot owners by

January 31, 2006.

C.      FINDINGS OF FACT 4 AND 5


        Dave'   s   View   assigns error      to the trial   court' s   finding   of   fact 4,   which provides      that "[ t] he


Developer   reserved   the   right     to   add   property to the Association but has            not   done   so."   CP at 370.


However, Dave' s View does not support this assignment of error with argument or citation to


authority. And in any event, this finding is supported by substantial evidence.

         Dave' s View does not argue that it affirmatively added any property to the homeowners'

association other than Phase 1, and nothing in the record establishes that it did. The original

declaration of CC &Rs only included the Phase 1 property. And Dave' s View recorded a

separate declaration of CC &Rs for Phase 2 rather than adding Phase 2 to the Phase 1

declarations. As noted above, Dave' s View argues that the property in other phases

automatically was added to the property described in the original declaration. But the

declaration states that Phases 2, 3, 4 and /or 5 may be added to the Phase 1 property. This

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indicates that the addition of new property was left to the declarant' s discretion and was not

automatic.




        Dave'      s   View   also assigns error    to   finding   of   fact 5,   which provides   that "[   t] he


Declaration does         not provide     for any   extension of    the Development Period for Phase 1."              CP at


370. But because Dave' s View fails to make any arguments supporting its challenge, we decline

under RAP 10. 3( a)( 6) to address this assignment of error


D.      COLLECTING ASSESSMENTS AND MAINTAINING COMMON AREAS


        Dave' s View assigns error to the trial court' s findings of fact 6 and 7, which relate to


collecting assessments for and maintaining common areas. Those findings provide:

              6)       The Homeowners' Association exists to collect assessments and maintain
        the common areas of the Property which currently encompasses the common
        areas of Phase 1 as delineated on the Plat, and any other property which is later
        added by the Developer.
           7) The Association owes a duty to the Developer and Lot Owners to maintain
        the    common          areas,    which common areas include all of the                     common areas
        delineated on the plat of Phase 1 and the main private road known as Dave' s
        View Drive which is shared with Phases 2 and 3.


CP at 370. Although these rulings are designated as findings of fact, because they involve

interpretation of applicable statutes and the homeowners' association' s governing documents

they include conclusions of law that we review de novo. We hold that the trial court did not err

in entering these findings and conclusions.

         Dave'     s   View first   argues     that these findings      conflict with     RCW 64. 3 8. 020( l 0). RCW


64. 38. 020( 10)       provides   that   a   homeowners'    association      may "[   i] mpose and collect any

payments,     fees,     or charges   for the    use, rental, or operation of        the   common areas."      However,


Dave' s View appears to challenge these findings insofar as they limit the homeowners'

association' s ability to collect assessments for and duty to maintain those common areas


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associated with        Phase 1.       The statute is silent on the scope of the homeowners' association' s


authority and duty regarding common areas in a multiple phase development. We hold that

findings of fact 6 and 7 do not conflict with RCW 64. 3 8. 020( l 0).

              Dave' s View next argues that these findings conflict with various provisions in the

homeowners' association' s bylaws. The bylaws provide:


              6. 3.   Authority        and    Powers        of   the Board        of    Directors.... [       T] he Board of

                      Directors may exercise all such powers of the Association and do all such
                      lawful acts and things as are not directed or required to be exercised or
                      done by the members of the Association by statute or by the Articles of
                      Incorporation          or   by   these      Bylaws,     including,          but   not   limited to, the

                       following:
                       1. To levy        and      collect    assessments,         annually, quarterly, monthly,            or

                             otherwise,      to    cover     the    cost     of   operating,        repairing,    improving,
                             insuring and maintaining Association Property;
                       2.    To use and expand the assessments collected to maintain, improve, pay
                             taxes, care for, replace and preserve Association Property;

                       8. To bring and defend actions by or against one or more existing or
                             former members, directors, officers, or agents pertinent to the operation
                             of the Association and to levy special assessments to pay the cost of
                             such litigation.


CP   at   196 -97. Article 10. 1        of   the bylaws      also provides        that "[ t] he Board of Directors shall have


the power to adopt and amend budgets for revenues, expenditures, and reserves, and impose and

collect assessments            for   common expenses             from   owners."        CP at 207.


              The bylaws also address the scope of the homeowners' association' s authority. Article 3

states that the association' s " jurisdiction" would be " all of the real property legally described as

Dave'     s   View    at   Martin' s Bluff, plat( s) [      and] phases      1 - 5 ".   CP   at   193. But this provision conflicts


with   the CC & Rs,          which limit the applicable property to Phase 1 plus any additional phases the




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No. 42687 -1 - II


declarant      added.$   Article 12. 5. 3 of the bylaws expressly provides that if there is any conflict

between the CC & Rs        and the bylaws, the CC &Rs control. Accordingly, findings of fact 6 and 7

do not conflict with the homeowners' association' s governing documents.

        We hold that conclusions 6 and 7 are not erroneous, and that the trial court properly

limited the homeowners' association' s scope of authority and duty to those common areas

associated with Phase 1.


E.      LIENS FOR PAST DUE ASSESSMENTS


        Dave' s View argues that findings of fact 22 and 31, which relate to the imposition of


liens against the lot owners' property for failure to pay past due assessments, violate the

homeowners'        association' s   governing documents           and   RCW 64. 3 8. 020( l 1).   We hold that finding

of fact 22 was not erroneous and that although finding of fact 31 was erroneous, Dave' s View

fails to ask for any meaningful relief based on this error.

          1.     Finding of Fact 22

        Finding     of   fact 22   states   that "[ t] here   can be no recordings against Lot Owner titles

without    proper   rules for enforcement and appeal."               CP at 372. Although this ruling was

designated as a finding of fact, it is a conclusion of law and we review the finding de novo. We

note that the finding does not state that Dave' s View failed to follow proper procedures before

imposing recordings against lot owners. Rather, it simply states that there must be proper

procedures in place before such liens can be imposed. None of the provisions in the bylaws or

articles that Dave' s View cites contradicts the conclusion that proper procedures are required


before imposing a lien on a homeowner' s property.



 8
   As we held above, substantial evidence supports the trial court' s finding that Dave' s View did
 not add any other phases to the property governed by the CC &Rs.
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No. 42687 -1 - II



        Dave'    s   View   argues   that the   conclusion conflicts with       RCW 64. 38. 020( 11), but that


statute actually supports the trial court' s conclusion. RCW 64.38. 020( 11) provides that a

homeowners' association may

         i] mpose and collect charges for late payments of assessments and, after notice
        and an opportunity to be heard by the board of directors or by the representative
        designated by the board of directors and in accordance with the procedures as
        provided in the bylaws or rules and regulations adopted by the board of directors,
        levy reasonable fines in- accordance with a previously established schedule
        adopted by the board of directors and furnished to the owners for violation of the
        bylaws, rules, and regulations of the association.


        Although the statute says nothing about recordings against homeowners' properties, it

states that the homeowners' association must provide notice and an opportunity to be heard and

follow proper procedures before imposing fines on homeowners for violations of the

association' s bylaws. Presumably, before recording a notice of past due assessment on a

homeowner' s property, Dave' s View was required under RCW 64. 38. 020( l 1) to comply with

procedures set forth in the bylaws. Therefore, we hold that the trial court' s conclusion that


Dave' s View was required to comply with requirements in RCW 643 8. 020( 11) was not

erroneous.




         2.   Finding of Fact 31

         Dave'   s   View   also challenges      finding   of   fact 31,   which provides   that "[ n] either the



declarations nor the law gave authority to record Notices of past due assessments which were

treated like liens    against real    property." CP        at   373.   Although this ruling was designated as a

finding of fact, it is a conclusion of law and we review the finding de novo.

         The lot owners do not dispute that the CC &Rs allowed the homeowners' association to


record liens against their property for past due assessments. Section 28 of the CC &Rs provides:



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No. 42687 -1 - II



           28.     Enforcement Provision.                 The bylaws of the Association shall provide for
           enforcement        of   its    assessments      against    the Lots       subject    thereto (   including any
           Lots created by subdivision of a Lot) in any manner provided by its bylaws,
           including the provision of a lien imposed upon a Lot to secure payment of a
           delinquent assessment, with the lien to be enforced by the Association, or such
           other party as may be designated.

CP   at   35.    Further, article 6. 4( 7) of the bylaws provides that the authority to " assess any

necessary fines or liens against lot owners" is reserved to the homeowners' association. CP at

198. Accordingly, because both the CC &Rs and bylaws allow the imposition of liens for past

due assessments, finding of fact 31 was erroneous.

           The lot owners nevertheless argue that when read in conjunction with the trial court' s oral


ruling, finding of fact 31 relates only to Dave' s View' s authority to impose liens, not the

homeowners' association' s authority to do so. Therefore, the lot owners argue, the conclusion

was not erroneous. An ambiguous finding. of fact or conclusion of law may be clarified by the .

trial   court' s oral opinion.           State   v.   Hescock, 98 Wn.       App.   600, 606, 989 P. 2d 1251 ( 1999); In re


Marriage of Getz, 57 Wn. App. 602, 605 n.4, 789 P. 2d 331 ( 1990).

            We hold that the conclusion itself is not ambiguous. Therefore, no resort to the oral


ruling is necessary.         Finding       of    fact 31 originally       provided   that "[   d] efendants did not have


authority to record Notices of past due assessments which were treated like liens against real

property." CP         at   373. The       phrase "[     d] efendants did not have" was then crossed out and resulted


in the trial     court' s adopted version of             the   finding,   which provided       that "[ n] either the declarations



nor the law gave authority to record Notices of past due assessments which were treated like

 liens    against real     property."       CP at 373. Had the trial court wished to limit the conclusion to


 Dave' s View only, it could have done so with the conclusion as originally written. By changing

the language to apply more generally, the trial court indicated that no party had authority to


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No. 42687 -1 - II



record liens in order to enforce assessments. The conclusion therefore was contrary to the

CC &Rs and association bylaws, which permitted the homeowners' association to file liens

against lot owners for past due assessments.


          Moreover, even if finding of fact 31 applies to Dave' s View only, we hold that it is

nevertheless erroneous.          Article 3. 2   of   the   bylaws   provided, "   Declarant hereby reserves for itself

     during the development period, all of the rights, powers and functions of the Association, its
members or       the Board      itself, which   shall   be   exercised and /or performed       by   the Declarant."   CP at


193. Therefore, because Dave' s View controlled the homeowners' association before January

31, 2006, it was permitted to impose liens against homeowners until that date.

          Nevertheless, although finding of fact 31 was erroneous, Dave' s View fails to request any

relief stemming from reversal of this conclusion. Although the trial court ordered that Dave' s

View pay damages to one of the homeowners resulting from a lien for past due assessments,
Dave' s View does not challenge this part of the trial court' s order. And Dave' s View does not

argue that it filed liens against the homeowners' properties before January 31, 2006, when it was

authorized under the bylaws to do so. Accordingly, we decline to address the claim farther.

F.        ATTORNEY FEES


          The lot      owners request     attorney fees      on appeal under      RAP 18. 1.   Their only argument is

that the trial       court   awarded   attorney fees to them "       as allowed under    RCW 64. 38. 050."      Br. of


Resp' t   at   31.    The lot owners provide no other basis for their request for attorney fees.

          RCW 64. 38. 050         provides, "   Any violation of the provisions of [the statutes governing

 homeowners' associations, chapter 64. 38 RCW] entitles an aggrieved party to any remedy

 provided by law or in equity. The court, in an appropriate case, may award reasonable attorneys'

 fees to the prevailing party." But we do not base our decision on appeal on any violation of

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No. 42687 -1 - II



chapter 64. 38 RCW. Accordingly, RCW 64. 38. 050 is inapplicable and we deny the lot owners'

request for fees on this basis.


          We do not address whether the lot owners may be entitled to attorney fees under the

CC &Rs because they do not request fees under the CC &Rs in the portion of their brief devoted

to fees. A party seeking attorney fees under RAP 18. 1 must provide argument and citation to

authority supporting its request. Phillips Bldg. Co. v. An, 81 Wn. App. 696, 705, 915 P. 2d 1146

 1996).


          Dave' s View also requests attorney fees on appeal under RAP 18. 1( b) and section 30 of

the CC &Rs, which entitles the prevailing party in an action to enforce the terms of the CC &Rs to

attorney fees. Because Dave' s View is not the prevailing party, we deny its request for fees.
          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 pursuant to RCW 2. 06. 040, it is

so ordered.




                                                     MAXA, J.




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