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

BELLEVUE FARM OWNERS                          )   No. 77830-7-I
ASSOCIATION, a non-profit corporation;        )   (consolidated with No.
LAUREN BARRETT and WILLIAM                    )   78300-9)
BARRETT, husband and wife, trustees of        )
the Laurie Barrett Residential Trust and of   )
the Bill Barrett Residential Trust;           )
WEBSTER AUGUSTINE III, an individual;         )
HOOPOE LLC, a Washington Limited              )
Liability Company; GIGI BIRCHFIELD and        )
MARK BAUTE, husband and wife;                 )
TIMOTHY DOHERTY and CHRISTINE                 )
DOHERTY, husband and wife; PATRICK            )
DOHERTY, an individual; GLEN CORSON           )
and KIM KYLO-CORSON, husband and              )
wife; JANTANA KUPPERMANN and                  )
BARUCH KUPPERMANN, husband and                )
wife; RODNEY SMITH and MARY                   )   UNPUBLISHED OPINION
MARGARET SMITH, husband and wife;             )
MATTHEW STRAIGHT and VERONICA                 )
STRAIGHT, husband and wife; TOM               )
TUCCI and DIANE TUCCI, husband and            )
wife; and DANA PIGGOT, an individual,         )
                                              )
                    Respondents,              )
                                              )
             v.                               )
                                              )
CHAD STEVENS and “Jane Doe”                   )
STEVENS, husband and wife,                    )
                                              )
                    Appellants,               )
                                              )
PETE FINDLEY and “Jane Doe”                   )
FINDLEY, husband and wife; CASCADE            )
MOUNTAIN RENTALS LLC, a                       )
                                              )
 No. 77830-7-I, 77401-8-I & 78430-7-I/2


Washington Limited Liability Company;         )
and DOES 1 to 10, Inclusive,                  )
                                              )
                    Defendants.               )
                                              )
                                              )
BELLEVUE FARM OWNERS                          )   No. 77401-8-I
ASSOCIATION, a non-profit corporation,        )   (consolidated with No.
LAUREN BARRETT and WILLIAM                    )   77603-7)
BARRETT, husband and wife, trustees of        )
the Laurie Barrett Residential Trust and of   )
the Bill Barrett Residential Trust;           )
WEBSTER AUGUSTINE III, an individual;         )
GIGI BIRCHFIELD and MARK BAUTE,               )
husband and wife; TIMOTHY DOHERTY             )
and CHRISTINE DOHERTY, husband and            )
wife; PATRICK DOHERTY, an individual;         )
GLEN CORSON and KIM KYLO-                     )
CORSON, husband and wife; JANTANA             )
KUPPERMANN and BARUCH                         )
KUPPERMANN, husband and wife;                 )
RODNEY SMITH and MARY MARGARET                )
SMITH, husband and wife; MATTHEW              )
STRAIGHT and VERONICA STRAIGHT,               )
husband and wife; TOM TUCCI and               )
DIANE TUCCI, husband and wife; and            )
DANA PIGGOT, an individual,                   )
                                              )
      Respondents/Cross Appellants,           )
                                              )
HOOPOE LLC, a Washington Limited              )
Liability Company,                            )
                                              )
                           Plaintiff,         )
                                              )
             v.                               )
                                              )
CHAD STEVENS and “Jane Doe”                   )
STEVENS, husband and wife,                    )
                                              )
      Appellants/Cross Respondents,           )
                                              )
PETE FINDLEY and “Jane Doe”                   )
FINDLEY, husband and wife; CASCADE            )
MOUNTAIN RENTALS LLC, a                       )
                                              )

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 No. 77830-7-I, 77401-8-I & 78430-7-I/3


Washington Limited Liability Company;          )
and DOES 1 to 10, Inclusive,                   )
                                               )
                           Defendants.         )
                                               )
                                               )
BELLEVUE FARM OWNERS                           )   No. 78430-7-I
ASSOCIATION, a non-profit corporation;         )
LAUREN BARRETT and WILLIAM                     )
BARRETT, husband and wife, trustees of         )
the Laurie Barrett Residential Trust and of    )
the Bill Barrett Residential Trust;            )
WEBSTER AUGUSTINE III, an individual;          )
GIGI BIRCHFIELD and MARK BAUTE,                )
husband and wife; TIMOTHY DOHERTY              )
and CHRISTINE DOHERTY, husband and             )
wife; GLEN CORSON and KIM KYLLO-               )
CORSON, husband and wife; JANTANA              )
KUPPERMANN and BARUCH                          )
KUPPERMANN, husband and wife;                  )
RODNEY SMITH and MARY MARGARET                 )
SMITH, husband and wife; MATTHEW               )
STRAIGHT and VERONICA STRAIGHT,                )
husband and wife; TOM TUCCI and                )
DIANE TUCCI, husband and wife; AND             )
DANA PIGOTT, an individual,                    )
                                               )
      Appellants/Cross Respondents,            )
                                               )
                    v.                         )
                                               )
CHAD STEVENS and “Jane Doe”                    )
Stevens, husband and wife,                     )
                                               )
      Respondents/Cross Appellants,            )
                                               )
                    and                        )
                                               )
ROBERT STEVENS and DOES 1-10,                  )
Inclusive,                                     )
              Defendants.                      )




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No. 77830-7-I, 77401-8-I & 78430-7-I/4


       ANDRUS, A.C.J. — Twenty homeowners in a San Juan Island development

known as Bellevue Farm have spent the better part of a decade fighting—both

literally and figuratively—over the meaning of a set of restrictive covenants

governing the use of their land and a waterfront parcel owned by the homeowners

as tenants in common. They have also fought over the boundaries between

privately owned lots and the waterfront parcel, the erection of a spite fence in front

of property owned by Chad Stevens, and the management and operation of their

homeowner association, Bellevue Farm Owners Association (BFOA).

       After four years of summary judgment rulings, a prior appeal to this court, 1

a 2016 bench trial, and a 2017 jury trial, no one came away happy with the result.

The record reveals a level of animosity between Stevens and his neighbors and

incivility between some of the parties and the attorneys that surpasses anything

this court has ever seen.         With the exception of one decision on certain

homeowners’ entitlement to an award of attorney fees under the restrictive

covenants, we affirm the trial court.

                            I.    FACTUAL BACKGROUND

    A. Bellevue Farm

       Bellevue Farm is a 54-acre development consisting of 14 separate lots

located on San Juan Island’s Westcott Bay. The farm was originally short-platted

in 1994 into four residential lots (BF Lots #1 through #4) and one waterfront lot

approximately 2000 feet in length (common waterfront). The short plat declared




1
  Bellevue Farm Owners Ass’n v. Stevens, 198 Wn. App. 464, 394 P.3d 1018 (Bellevue Farm I),
review denied, 189 Wn.2d 1038, 413 P.3d 565 (2017).

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No. 77830-7-I, 77401-8-I & 78430-7-I/5


that “the shoreline common area shall be owned in common by all owners of lots

within the plat.”




       In 1994, Bellevue Farm’s former owner incorporated BFOA as a

Washington non-profit corporation and adopted bylaws and a set of covenants,

conditions, and restrictions (1994 CC&Rs).      The owners amended the 1994

CC&Rs in 1997 (1997 CC&Rs).

       In 1995, Brad Augustine and some investors purchased BF Lot #4 and

short-platted it into eight smaller residential lots. These eight lots—each between


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No. 77830-7-I, 77401-8-I & 78430-7-I/6


one and one-half and two acres in size—became known as South Bellevue Farm

and are governed by a separate homeowner association, South BFOA, subject to

restrictive covenants recorded against the South Bellevue Farm lots. The South

Bellevue Farm lots (South BF Lots #1 through 8) share a water well, a tennis court,

and a pond. Within South Bellevue Farm, there are four lots that face the common

waterfront and four upslope lots. In 1997, the lot owners in Bellevue Farm and

South Bellevue Farm agreed to combine the two groups’ meetings and to study

the issue of functioning as one homeowner association in the future. From that

point forward, while BFOA and South BFOA were two separate entities, each

board was composed of the same members so that, in effect, BFOA and South

BFOA were considered to be one entity.

   B. The Protagonists in this Saga

      Every owner in Bellevue Farm and South Bellevue Farm was a party to this

lawsuit. The following photograph shows the relative locations of the parcels and

their owners:




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No. 77830-7-I, 77401-8-I & 78430-7-I/7




       Chad Stevens. Stevens, a full-time Cle Elum resident, purchased BF Lot

#3, a total of 10 acres, in June 2005. He later short-platted the lot into two five-

acre parcels, BF Lots #3A and #3B. 2 When Stevens purchased the property, the



2
  BF Lot #3A is identified in the aerial photograph as Parcel No. 462421002000. BF Lot #3B is
identified as Parcel No. 462421007000.

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No. 77830-7-I, 77401-8-I & 78430-7-I/8


upslope portion, now BF Lot #3A, had a three-bedroom farmhouse, constructed in

1889, and a two-bedroom “hatch house,” constructed around 1996.

        BF Lot #3B borders the common waterfront. The widest and most usable

section of the entire common waterfront sits in front of Stevens’s parcel. Stevens

later constructed a four-bedroom beach house on BF Lot #3B facing this waterfront

area, completing it in July 2012.            BF Lot #3B also has a 100-year-old apple

orchard. According to Stevens, the apples are primarily the type used in making

hard cider. Stevens also planted a vineyard on the upslope parcel.

        Stevens purchased the property for its waterfront access and he knew he

would have to rent out the property to afford its mortgage. He obtained transient

rental permits for both lots and, starting in 2008, began marketing the properties

to vacation renters. This short-term rental activity, along with his subsequent open

hostility toward and lack of candor with his neighbors, contributed to serious

conflicts before and during this lawsuit.

        Mark Baute and Gigi Birchfield. Baute and Birchfield, a married couple, are

attorneys who live in California. They initially purchased South BF Lot #1, with a

home facing the waterfront, from Brad Augustine in 2005. 3 This lot is adjacent and

to the south of Stevens’s BF Lot #3B. Baute and Birchfield obtained a transient

rental permit for short-term vacation rentals and hired a local property manager to

rent this house. They have rented out this house since they purchased it in 2005.




3
  South BF Lot #1 is identified in the aerial photograph as “154,” which refers to its address at 154
Bellevue Farm Road.

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No. 77830-7-I, 77401-8-I & 78430-7-I/9


        Five years later, BF Lot #2B, also facing the waterfront and adjacent to and

north of Stevens’s lots, came up for sale. 4 Baute and Birchfield purchased the

land with their close friends, Jantana and Dr. Baruch Kupperman. The two couples

subsequently built a large, joint home on the property.

        As a result of these acquisitions, Baute and Birchfield currently have an

ownership interest in the lots on both sides of Stevens’s lots. The relationship

between Baute and Stevens and Stevens’s attorneys became particularly

adversarial throughout this litigation, with Baute leading the BFOA members into

taking certain actions that contributed significantly to the escalation of disputes

with Stevens. 5 Baute was a BFOA officer for the years relevant to this lawsuit.

        Jantana and Dr. Baruch Kupperman. The Kuppermans, who reside in

California, joined Baute and Birchfield in purchasing BF Lot #2B and building a

large, multi-family home on that lot in 2011. They visit between two and six weeks

each year. Together, Baute and Dr. Kupperman obtained a transient rental permit

for the large house. The parties disagreed about the frequency of vacation rentals

for the home on BF Lot #2B. Baute testified they rarely rent out the larger home.




4
  BF Lot #2B is identified in the aerial photograph as Baute/Kupperman, Parcel No. 462421009000.
It is also known by its address of 78 Husky Lane.
5
  Baute was initially admitted pro hac vice to participate as counsel for BFOA and the 19 owners,
of which he is one, in its lawsuit against Stevens. After years of complaints regarding Baute’s
misconduct toward Stevens at Bellevue Farm and misconduct within the litigation, the trial court
took the extraordinary step of revoking Baute’s pro hac vice admission, disallowing him from
representing anyone other than himself and his wife, Birchfield. The court found that Baute’s
personal interest in the matter “consistently and substantially interfered with his ability and/or
willingness to serve as an attorney for the other Plaintiffs in a manner that is appropriately respectful
of the Defendants, their attorneys, and this [c]ourt.” The court also found that the litigation had
been conducted “with unacceptable levels of personal invective, inappropriately emotional and
sometimes unnecessary pleadings, and an overall lack of the focus and civility necessary for the
efficient use of judicial resources.”

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No. 77830-7-I, 77401-8-I & 78430-7-I/10


Stevens disputed that testimony, contending the house had been completely

booked by short-term renters in the summers.

          Glen Corson and Kim Kyllo-Corson. The Corsons purchased South BF Lot

#8, one of the upslope lots without direct waterfront access, 6 in 1997. They built

their first home on the lot shortly after purchase and subsequently built a larger

home on the same parcel in 2015. Before moving into the home as their full-time

residence when they retired, the Corsons used their Bellevue Farm property as a

vacation home.

          Corson held the position of BFOA president, a volunteer position, for

roughly a decade—from 2006 or 2007 to 2017. His role in enforcing what he

believed were reasonable restrictions on renter use of the common waterfront led

to Stevens filing counterclaims against him. Corson took significant direction from

Baute in his management of BFOA’s day-to-day operations.

          Veronica and Matthew Straight. The Straights own South BF Lot #4, a

waterfront lot. 7 When they purchased their land, only one lot in Bellevue Farm had

a home constructed on it. The Straights built their home in 1998.

          Matthew Straight, like Baute, is an attorney. Straight practices real estate

law in Seattle and has extensive experience drafting homeowner association

governing documents. Because of his legal expertise, he was intimately involved

in the management of BFOA and South BFOA and in reviewing and proposing

amendments to the 1997 CC&Rs—actions at the heart of the dispute with Stevens.


6
    The Corsons’ parcel is identified as 105 Webster Drive in the photograph.
7
  The Straights’ South BF Lot #4 is identified as 234 Bellevue Farm Road, or Parcel No.
462452004000.

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No. 77830-7-I, 77401-8-I & 78430-7-I/11


          Lauren and William Barrett. The Barretts reside full time in Seattle. They

purchased South BF Lot #2 in 1995 or 1996, 8 and built a house in 2000.

          Hoopoe LLC. During the relevant period of this lawsuit, Hoopoe LLC owned

BF Lot #1 (now divided into BF Lot #1A and BF Lot #1B). 9 San Juan Island

residents Charles R. Anderson and Pamela R. Gross formed Hoopoe to acquire

BF Lot #1 in early 2009. Geographically isolated from the rest of the Bellevue

Farm properties, BF Lot #1 is undeveloped.

          Mary Margaret and Rodney Smith. The Smiths own BF Lot #2A, which

borders the common waterfront. 10 The Smiths, residents of Washington, D.C.,

built a home on their lot after they purchased it.

          Dana Pigott. Pigott, who resides full time in the Seattle area, owns South

BF Lot #3. 11 She had a home built on her lot, which also borders the common

waterfront. Pigott did not rent her San Juan Island home to vacationers, but she

did make it available to non-family members through charity auctions.

          Diane and Thomas Tucci. The Tuccis own the upslope parcel, South BF

Lot #5. 12 The Tuccis use the home on their lot relatively infrequently, as it is their

second vacation home. They have applied for a transient rental permit, but it is

unclear if they have actually ever rented the home to vacationers.




8
    The Barrett parcel is located at 178 Bellevue Farm Road in the photograph.
9
    The Hoopoe lots are Parcel Nos. 462421008000 and 462421005000 in the photograph.
10
     The Smiths’ parcel is identified in the photo as Parcel No. 462421004000.
11
  Pigott’s parcel is located at 208 Bellevue Farm Road and is identified on the photo as Parcel No.
462452003000.
12
     The Tucci lot is identified on the photo as Parcel No. 462452005000.

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No. 77830-7-I, 77401-8-I & 78430-7-I/12


          Web Augustine. Web Augustine’s brother, Brad, was the original developer

of Bellevue Farm. Web Augustine has owned the upslope lot, South BF Lot #6,

since 2000. 13 Two years later, he began renting the home on the lot to short-term

vacation renters. He resides off island and visits, approximately, eight days a year.

          Christine and Timothy Doherty. Christine and Timothy Doherty purchased

South BF Lot #7 in 2010. 14 Like most of the other owners in Bellevue Farm, they

built a house after purchasing the lot. The Dohertys live off island, and like

Stevens, Baute, and Web Augustine, the Dohertys rent their home to vacationers.

      C. The Summers of 2011 and 2012

          The major events leading to this lawsuit occurred in the summers of 2011

and 2012. In 2011, Stevens booked three weddings to occur on BF Lots #3A and

#3B. After the first wedding party, with 125 guests in attendance, several Bellevue

Farm and South Bellevue Farm owners complained to Stevens about the number

of people on the waterfront, the traffic, and the noise that lasted well into the night.

There was evidence that the wedding participants and guests brought shuttle

buses, diesel trucks, portable toilets, and kitchen catering equipment onto Bellevue

Farm. The vehicle traffic blocked Bellevue Farm Road, preventing owners from

entering or leaving their property. Loud music played late into the night, disrupting

the owners’ solitude.

          Several owners questioned whether the wedding was allowed under

Stevens’s transient rental permits. When Stevens realized weddings were not a


13
     Web Augustine’s South BF Lot #6 is identified in the photo as Parcel No. 462452006000.
14
   The Dohertys’ parcel is located at 145 Bellevue Farm Road and identified as Parcel No.
462452007000.

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No. 77830-7-I, 77401-8-I & 78430-7-I/13


good fit for the quiet Bellevue Farm community, he apologized for the disruption

and offered to cancel his two other bookings. Corson, BFOA’s then-president, said

there was no need to cancel the two weddings but asked that Stevens be present

during the weddings and receptions to ensure the music ended at 9:00 p.m.

Stevens ceased marketing his property for weddings that summer, and he booked

no other weddings.

       Despite Stevens’s agreement not to rent his property for weddings, several

owners grew concerned about how regularly such events might occur at Bellevue

Farm. According to Glen Corson, the weddings “kind of woke everybody up—and

got them talking with each other . . . it woke everybody up to the fact that we were

having more people there more often[,] and it looked like it was going to get more

and not less.” The owners felt Stevens’s rentals might threaten the low density,

quiet, private nature of Bellevue Farm.

       In April 2012, several of the owners discovered that Stevens was in arears

on his mortgage for BF Lots #3A and #3B by over $120,000 and that the lender

had issued a foreclosure notice. A notice of a trustee’s sale was set for July 6,

2012. In the short term, some owners became concerned because the Barretts

had rented Stevens’s farmhouse and hatch house for their son’s wedding in late

July 2012. From a long-term standpoint, Baute and Straight were concerned that

if a lender purchased the property in foreclosure, BFOA could lose control over the

use of the residences on the lots, and the lender might not maintain the property

or pay homeowner association dues.




                                       - 13 -
No. 77830-7-I, 77401-8-I & 78430-7-I/14


       Stevens’s neighbors alerted him to the notice of foreclosure.     Stevens

himself was unaware that his business partner had stopped paying the mortgage

on the property. When he learned of the problem, he paid off the outstanding

balance and refinanced the property.

       While Stevens was in the midst of avoiding foreclosure, Baute told Stevens

he thought Stevens was violating BFOA’s 1997 CC&Rs by allowing renters to use

the common waterfront. Several owners agreed with Baute that the 1997 CC&Rs

precluded any renters from accessing the common waterfront. Stevens disagreed

with their interpretation.

       Baute also questioned whether Stevens was following county requirements

for transient rental permits. In early May 2012, Baute told Stevens that a county

ordinance prevented Stevens from renting both the hatch house and the nearly

completed beach house at the same time. Baute’s understanding of the transient

rental permit ordinance caused Stevens to reconsider his agreement, made almost

a year earlier, to rent his farm house, hatch house, and beach house to Blake

Barrett, the son of Lauren and William Barrett, for Blake’s July 28, 2012 wedding.

Stevens called Barrett to cancel the reservation because he was unsure if he was

legally able to rent both residences at the same time under his transient rental

permit. Although Stevens ultimately concluded he had the permits to rent the farm

house and the newly constructed beach house to the Barretts, he refused to allow

them to hold the wedding reception on his property. Although the Barretts could

have held the reception on the common waterfront in front of Stevens’s lot, they

were unsure where the common waterfront boundary was located and, thus, could



                                       - 14 -
No. 77830-7-I, 77401-8-I & 78430-7-I/15


not guarantee everyone would stay off of BF Lot #3B. They scrambled to find an

alternative location and ultimately used the waterfront area in front of the

Baute/Kupperman house.

       Stevens’s refusal to allow the Barretts to use his land for the wedding, less

than two months before it was scheduled to occur, caused an extremely negative

backlash from Stevens’s neighbors. Blake believed Stevens was holding the rental

over his parents’ heads to punish them for not agreeing with Stevens on the issue

of renter access to the common waterfront. The Barretts were understandably

angry at Stevens over this incident, as were most of the other owners, who

believed their children should be permitted to use the waterfront for wedding

ceremonies. As Kyllo-Corson testified, “who would do that to a bride? . . . I don’t

want Bellevue Farm[] to be known as somebody that’s going to cancel the

bride’s . . . wedding weeks or even a month before hand.” Stevens’s refusal to let

the Barretts use his land for their son’s wedding, at such a late date, was a “pivotal

point” with the owners, causing them to band together against him. Stevens

appears not to have appreciated the consequences of his actions.

       At BFOA’s annual meeting on May 12, 2012, the owners discussed whether

renters had the right to access the common waterfront and a floating dock.

Stevens, who participated in that meeting, took the position that renters had

historically always been permitted on the waterfront and should be treated as

guests of the owners. Stevens relied on the language of paragraph 4(a) of the

1997 CC&Rs, which allowed guests of owners to use that area. Stevens argued

the word “guests” in article 4(a) meant both houseguests of owners and short-term



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No. 77830-7-I, 77401-8-I & 78430-7-I/16


vacation renters. Most of the owners—who were, by that point, already disinclined

to agree with any position Stevens took—disagreed with his broad interpretation

of the word “guests.”

      Although there was no resolution to the issue at this meeting, Corson

suggested the county transient rental permits required owners to provide a code

of conduct for renters. Stevens offered to draft a proposed set of rules for renters

and to disseminate the draft to the owners. In early June 2012, Stevens circulated

a proposed set of “Rules and Regulations Regarding Common Land and Common

Dock of Bellevue Farm Owners Association.” These proposed rules would have

permitted waterfront access to short-term renters if the homeowners obtained

insurance to cover damages caused by those renters and agreed to indemnify

BFOA and the other owners for any injuries the renters sustained.

      On June 13, 2012, Stevens circulated a proposed “Agreement Regarding

Respect of Property Rights and Use of Common Areas in Bellevue Farm.” This

document would have, if signed by Bellevue Farm and South Bellevue Farm

owners, allowed renters to use both the tennis courts in South Bellevue Farm and

Bellevue Farm’s common waterfront. Stevens received less than enthusiastic

feedback on his interpretation of the 1997 CC&Rs and his proposed agreement.

According to Corson, after Stevens discovered his neighbors did not support his

interpretation of the 1997 CC&Rs, Stevens began complaining to Corson about

children driving golf carts on his property, people trespassing and picking his

apples in his orchard, and people using his property as a picnic ground.




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No. 77830-7-I, 77401-8-I & 78430-7-I/17


       Straight and Baute prepared an alternative proposal, which Straight

circulated via e-mail on June 20, 2012. Straight proposed what he labeled as a

“clarification” of article 4(a) and an “Interim License Agreement.” The proposed

additional language for article 4(a) read:

       As provided in the first two sentences of this Article 4a, the common
       land (including but not limited to the common waterfront) and
       common dock is not to be used by tenants (whether short term or
       long term), and is to be reserved for and used only by owners, as
       described and limited above in this Article 4a. However, owners may
       seek permission from [BFOA] and its Board to be allowed to use a
       limited and specified area of the common waterfront, in the form of a
       written and signed revocable license agreement, and such
       permission and the terms of any such revocable license, if any, will
       be determined in the sole and absolute discretion of [BFOA] and the
       Board. Tenants are not considered to be guests.

And under the proposed license agreement, owners with transient rental permits

could allow renters limited access to the common waterfront. Accompanying the

proposed license agreement was a hand-drawn map of Bellevue Farm and the

common waterfront with three small areas designated for renters’ use.

       On June 21, 2012, Corson distributed the Straight/Baute proposal to the

owners with a notice of a July 5, 2012 special meeting. In this notice, Corson

stated that if any owner refused to approve the article 4(a) clarification or the

proposed license agreement, the owners would also discuss “whether BFOA

should sue any such owner for declaratory relief, quiet title and a permanent

injunction.” Corson also asked for owners to submit their votes via e-mail ahead

of the meeting if they could not attend. Stevens objected, contending it was

inappropriate for Corson to solicit votes ahead of the meeting. Baute, in response,

told Stevens the “results were in” before the special meeting began.



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No. 77830-7-I, 77401-8-I & 78430-7-I/18


       Stevens attended the July 5, 2012 special meeting to register his opposition

to any change to the 1997 CC&Rs that restricted renters’ use of the common

waterfront and to any license agreement that could be revoked on the whim of

BFOA. During the meeting, the owners voted to approve the clarification to article

4(a) of the 1997 CC&Rs. Stevens voted against the proposal and Web Augustine

abstained.

       The next major dispute arose over Stevens’s proposed construction of a

5,600 square foot barn on BF Lot #3A. In mid-July 2012, Stevens submitted final

plans to the county for a building permit for a large barn. Stevens refused to tell

his neighbors the purpose for the barn, but based on notations on the plans, they

concluded he intended to use it to process alcohol—specifically, wine and hard

cider. The plans, in fact, bore the notation:

       Building use note: This mixed use building is proposed to be used
       as a personal, small scale winery & storage for farm equipment on
       the first floor with an ADU office on the second floor. In the future
       the facility may sell wine.

The drawings called out resting tanks, fermentation tanks, barrel storage, a bottling

area, a large area for staging and fruit storage, racking facilities, and a “wine/cider

making lab.” Although Stevens testified he planned to use the barn only to store

farming equipment, the plans showed a very small area for equipment storage in

comparison to the area designated for wine- or cider-making. Given the size of

the barn and the number and size of fermentation tanks, resting tanks, and wine

barrels shown on the plans, Corson, a retired brew master at Rainier Brewery,

believed Stevens intended to start a “moderate sized commercial winery.” The




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No. 77830-7-I, 77401-8-I & 78430-7-I/19


Bellevue Farm owners disbelieved Stevens when he tried to assure them he had

no intention to start a commercial business on BF Lot #3A.

      Fearing that Stevens intended to open an alcohol processing facility or

commercial winery in the barn, the owners—who wanted to protect the seclusion,

privacy, and tranquility of Bellevue Farm—decided they needed to amend the 1997

CC&Rs to prevent this commercial activity.       Corson called a second special

meeting for August 4, 2012 to consider an amendment to article 5 of the 1997

CC&Rs. This proposed amendment, also drafted by Straight, identified allowable

and prohibited agricultural uses and activities.    Activities explicitly prohibited

included “the sale of liquor, wine, beer, hard cider or other alcoholic beverages,”

and the “use of industrial, manufacturing or processing equipment for distilling or

making wine, liquor, beer, hard cider or alcoholic beverages for sale.”

      The day before the special meeting, August 3, 2012, Baute testified he went

to Stevens’s property to try to talk to Stevens about the proposal. Stevens told

Baute he was trespassing, told him to “get the [f—k] off of his property,” and

threatened to call the police. Corson testified he too went to speak to Stevens and

found him inside the beach house finishing some construction work. Stevens told

Corson he was trespassing and “to get off of his property.”

      At the August 4, 2012 special meeting, the members of BFOA adopted

Straight’s proposed article 5(g) to the 1997 CC&Rs. Stevens refused to attend the

meeting but cast his votes against the amendment by e-mail.

      While the Bellevue Farm owners fought over renter access rights and

permissible agricultural activities, some owners observed Stevens and his father



                                       - 19 -
No. 77830-7-I, 77401-8-I & 78430-7-I/20


removing an apple tree on a part of what those owners believed to be the common

waterfront. Stevens, who had maintained the apple tree for the entire time he had

owned BF Lot #3B, assumed it was his tree.

       To resolve this conflict, Corson commissioned a survey of the boundary line

between the common waterfront and Stevens’s BF Lot #3B. Corson and Stevens

both assumed the boundary ran in a straight line approximately 75 feet back from

the ordinary high watermark. In fact, the survey revealed the boundary line was

crooked, and it turned out the apple tree Stevens cut down was on the common

waterfront, not on BF Lot #3 as he had assumed based on the previously

understood, but improper, boundary line.       Stevens apologized to the owners

afterward for mistakenly cutting down the tree. His apology did little to mend his

relationship with his neighbors.

       After the owners concluded their special meeting on August 4, 2012, several

attendees voiced concern over what they perceived as Stevens’s unreasonable

behavior. Apparently they came to believe that the best way to assert control over

the situation was to build a fence at the boundary of the common waterfront and

Stevens’s lot.    Corson testified there was a general agreement amongst the

owners that it was a good idea to build the fence, although they took no official

vote on whether to construct such a fence. Corson, as president of BFOA, decided

to install the fence.

       Other incidents allegedly occurred that summer. According to Baute and

Dr. Kupperman, after the tense special meetings in July and August 2012, they

became afraid of Stevens after he fired a shotgun over their heads near the



                                      - 20 -
No. 77830-7-I, 77401-8-I & 78430-7-I/21


waterfront. Baute thought Stevens shot at them as an act of intimidation or to

“mark[] his territory.” Several owners testified that once they heard about this

alleged incident, they were uninterested in approaching Stevens to talk to him

about any of the disputes. They were outraged that Stevens would fire a shotgun

in such close proximity to the houses.

     D. BFOA Lawsuit against Stevens and the Spite Fence

        Several things occurred in September 2012. First, BFOA and all of the

owners (Owner Plaintiffs) initiated this lawsuit against Stevens on September 11,

2012. BFOA and the Owner Plaintiffs sought declaratory relief as to the validity of

article 4(a) and 5(g) of the 1997 CC&Rs. They sought an injunction to prohibit

Stevens’s renters from using the common waterfront.                    BFOA and the Owner

Plaintiffs, except Hoopoe, alleged Stevens had committed trespass by destroying

the apple tree they had learned was on the common waterfront and not on

Stevens’s lot.      And Owner Plaintiffs Baute, Birchfield, and the Kuppermans

asserted a claim against Stevens for timber trespass under RCW 4.24.630 relating

to Stevens’s 2011 removal of a willow grove that spanned the parties’ joint

boundary. 15

        Second, Stevens held his own wedding on BF Lot #3B on September 15,

2012.    The Owner Plaintiffs were aware of his intended nuptials, as he had

informed Baute, Corson, and Straight of the planned event months earlier. Corson,

in turn, informed some of the Owner Plaintiffs about the planned event.



15
   Dr. Kupperman also asserted a negligent infliction of emotional distress claim arising out of the
alleged August 2012 shotgun incident. This claim was presented to a jury in 2017 but dismissed
pursuant to CR 50(a) at the close of Dr. Kupperman’s case-in-chief.

                                              - 21 -
No. 77830-7-I, 77401-8-I & 78430-7-I/22


        Third, on either September 16 or 17, 2012, Corson’s contractor began

digging post holes and built a split rail cedar fence on the boundary line between

the common waterfront and Stevens’s BF Lot #3B. Corson did not ask the BFOA

Board of Directors (Board) for permission to build the fence, but he used BFOA

funds to do so. The fence was originally built with five openings along the boundary

line to allow people to walk through to the waterfront. Corson was not present

when the fence was built, and Baute gave the contractor direction on where to

place the openings. Of the five openings in the fence, the one available for

Stevens’s renters—had he signed the license agreement—was partially blocked

by a large tree. There were no openings in the fence in front of Stevens’s beach

house. Baute testified he decided to spread out openings, with an emphasis on

openings on the right side of Stevens’s lot. No one from BFOA notified Stevens of

the intent to erect the fence. And no one consulted with Stevens as to the

placement of the openings in the fence.

     E. Stevens’s Counterclaims

        In response to the suit and the fence, Stevens asserted several

counterclaims against BFOA and the Owner Plaintiffs. He alleged BFOA and the

Owner Plaintiffs had violated the 1997 CC&Rs by “clarifying” article 4(a) and

amending article 5 through the adoption of article 5(g) to restrict his property rights

(counterclaim 1). 16 He also contended BFOA and the Owner Plaintiffs violated the

1997 CC&Rs by erecting a spite fence blocking his access to the common


16
   Stevens voluntarily dismissed several counterclaims before the 2017 jury trial. The trial court
dismissed other counterclaims on summary judgment that are not the subject of this appeal. The
counterclaim numbering referenced here reflects Stevens’s Fifth Amended Counterclaims, as that
document is the most relevant for this appeal.

                                             - 22 -
No. 77830-7-I, 77401-8-I & 78430-7-I/23


waterfront (counterclaim 2). He further asserted constructing the fence to block

his access to the common waterfront was a violation of RCW 7.40.030 17

(counterclaim 3). Stevens also claimed BFOA and the Owner Plaintiffs further

violated the 1997 CC&Rs because the changes to the 1997 CC&Rs and erection

of the fence constituted a nuisance (counterclaim 7).

        Stevens later added a counterclaim alleging BFOA and the Owner Plaintiffs

had breached a duty of good faith toward him by amending articles 4(a) and 5(g),

by adopting a series of unreasonable license agreements for renter waterfront

access, and by constructing the fence (counterclaim 10). He also sought partition

of the common waterfront based on the significant operational disagreements he

had with the Owner Plaintiffs (counterclaim 11).

        Finally, Stevens added a counterclaim alleging BFOA and its Board were

violating the statute governing homeowner associations, chapter 64.38 RCW, in

several different ways, including breaching fiduciary duties he claimed they owed

to him (counterclaim 12). 18 This counterclaim 12, as modified over the course of

the lawsuit, alleged statutory violations against only BFOA, “acting through its

directors, and not against those directors individually or against [BFOA’s]

members.” 19 Stevens alleged BFOA failed to give the required statutory notice of


17
  RCW 7.40.030 provides in pertinent part: “An injunction may be granted to restrain the malicious
erection, by any owner or lessee of land, of any structure intended to spite, injure or annoy an
adjoining proprietor.”
18
   Stevens also alleged Baute had committed abuse of process in his litigation conduct toward
Stevens and Stevens’s attorneys and in attempting to use the lawsuit to force Stevens out of
Bellevue Farm (counterclaim 13). Stevens voluntarily dismissed this claim in November 2017, after
this court issued its decision in Bellevue Farm I. We do not address counterclaim 13 any further.
19
  The trial court granted Stevens’s CR 41 motion to voluntarily dismiss any portion of counterclaim
12 that was based on the litigation conduct of BFOA or its Board.

                                              - 23 -
No. 77830-7-I, 77401-8-I & 78430-7-I/24


all meetings, failed to make those meetings open to all Bellevue Farm lot owners,

failed to keep minutes of all actions it took, failed to make its minutes and other

records available to lot owners, and failed to make financial information available

in a timely and organized manner. He also alleged BFOA failed to comply with its

duties of good faith and fair dealing by, among other things, constructing a fence

between his property and the common waterfront.

      The trial court resolved the parties’ claims and counterclaims through

summary judgment orders, a 2016 bench trial, and a 2017 jury trial. The details of

its decisions and the parties’ arguments on appeal are addressed below.

                                 II. ANALYSIS

   A. BFOA Changes to Articles 4(a) and 5(g) of the 1997 CC&Rs

           1. Relevant Facts

      Article 1 of the 1997 CC&Rs recognizes that Bellevue Farm is “a unique and

irreplaceable parcel of land” with “exceptional natural beauty and unusual

diversity.” By purchasing a lot within Bellevue Farm, the owners agreed that the

land is “desirable primarily for low density residential use and a wide variety of

related rural and recreational activities.” They also agreed that only designated

portions of Bellevue Farm could be used for “certain commercial uses.”

      The purpose of the 1997 CC&Rs was to:

             a. Permit the broadest possible use of both individual lots
      and the common land for all the usual and desirable rural,
      recreational and residential activities which are not in conflict with a
      high degree of privacy and seclusion for individual Owners and which
      do not conflict with maintenance of the natural qualities and beauty
      of the area.




                                       - 24 -
No. 77830-7-I, 77401-8-I & 78430-7-I/25


               b. Provide a reasonable basis for use of the common land for
       the fullest enjoyment of all the residential lot Owners.

               c. Maintain and enhance the material value and quality of
       [Bellevue Farm] of each individual lot Owner and all lot Owners
       collectively.

              d. Provide a reasonable means of allowing certain
       designated portions of [Bellevue Farm] to be used for commercial,
       multi-family and mixed uses while minimizing conflicts with the
       primary use of [Bellevue Farm] by single-family residential lot
       Owners.

Article 1 further provides, “Interpretation of specific provisions of these covenants

shall be made in keeping with these general purposes.”

       Article 2 gives BFOA the authority to “[s]et reasonable rules for the use of

the common land in keeping with these covenants and their general purposes.”

BFOA can levy annual assessments against each owner to cover the cost of

maintenance and operation of the common facilities and roads. Every owner within

the Bellevue Farm short plat is automatically a member of BFOA. Voting rights,

consisting of 16 votes, are allocated among the various lots. The owner of BF Lots

#1A and #1B, holds 2 votes. Stevens, as the owner of BF Lots #3A and #3B, is

entitled to 4 votes. The owners of every other lot hold one vote each. The annual

maintenance dues are similarly allocated. As a result, Stevens paid 25 percent of

the homeowner association’s annual assessments.

          a. Renter Access to Common Waterfront under Article 4(a)

       Article 4 gave to each owner “an equal right to enjoyment of the common

land” and access to a common dock. This right was subject to the restrictive

covenants laid out in articles 4(a) through (e) and “such other rules as [BFOA] may

prescribe from time to time.” When adopted in 1997, article 4(a) provided:

                                       - 25 -
No. 77830-7-I, 77401-8-I & 78430-7-I/26


              Use of the common land and any common dock by guests
       who are actual house guests of Owners, or who are specifically
       accompanied by an Owner is permitted. Use of the common land
       and any common dock by persons not a guest in the household of
       an Owner, or not accompanied by an Owner or a member of an
       Owner’s family, is not permitted. Lot Owners who have not built a
       house may not permit guests to make use of the common land or
       any common dock unless they are accompanied by the Owner, nor
       may they lease or rent their unimproved land for the purpose of
       conferring use of such facilities upon a third party.

       At the July 5, 2012 special meeting, the owners approved, by a vote of 11

to 4, 20 a document entitled “Clarification of Article 4a of the Conditions, Covenants

and Restrictions of the Bellevue Farm Owners’ Association.”                  This document

provided:

               WHEREAS Article 4a of the Bellevue Farm Owners’
       Association (“BFOA”) Conditions, Covenants and Restrictions
       (“CCRs”) states that the common waterfront land and common dock
       is reserved for use by owners and their actual house guests and
       visitors accompanied by owners, and further provides that paying
       tenants not accompanied by owners are not allowed to use the
       common waterfront land or the common dock;

              WHEREAS one BFOA member, Chad Stevens (“Stevens”) is
       operating a three home rental business . . . and Stevens has argued,
       erroneously, that Article 4a of the CCRs allows tenants the same
       unrestricted rights to use the common waterfront land and common
       dock as owners;

               THE MEMBERS SIGNING BELOW WISH TO RESOLVE
       THE ISSUE QUICKLY, CHEAPLY AND INFORMALLY, WITHOUT
       HAVING TO SUE STEVENS, and believe that signing this document
       is the friendlier and more cost-effective way to end any controversy
       about the meaning of Article 4a, and thus, have signed below to
       indicate that sixty (60%) percent of BFOA’s voting members have
       clarified Article 4a of the CCRs as follows:

              Three new sentences are added to Article 4a of the CCRs, as
       follows: “As provided in the first two sentences of this Article 4a, the
20
  Article 11 of the 1997 CC&Rs authorizes amending the covenants by a vote of 60 percent of the
authorized votes. With 16 total voting units, the amendment passed by more than the requisite 60
percent.

                                            - 26 -
No. 77830-7-I, 77401-8-I & 78430-7-I/27


       common land . . . is not to be used by tenants . . . and is to be
       reserved for and used only by owners . . . . However, owners may
       seek permission from [BFOA] and its Board to be allowed to use a
       limited and specified area of the common waterfront, in the form of a
       written and signed revocable license agreement . . . . Tenants are
       not considered to be guests.”

Straight recorded the amended 1997 CC&Rs with the county auditor on August

23, 2012.

       The trial court denied, on summary judgment, Stevens’s motion to invalidate

the language that BFOA and the Owner Plaintiffs added to article 4(a). In an oral

ruling, the court stated that article 4(a) did not impose a new or different restriction

on Bellevue Farm owners. It concluded that the 1997 CC&Rs, as originally drafted,

did not permit renters to use the waterfront because the article restricted that use

to actual house guests or guests accompanied by an owner.

       Stevens then sought to enjoin enforcement of the renter access restrictions

pending trial, claiming the prohibition, to the extent it existed, had been abandoned

by the owners over the years. He also argued BFOA and the Owner Plaintiffs

should be estopped from seeking to enforce it against him because he had

purchased BF Lots #3A and #3B based on representations of BFOA’s then-

president, Brad Augustine, that renter access to the waterfront was permissible.

       In May 2013, after Baute confronted Stevens’s attorney, who was staying

in one of Stevens’s residences, about walking unaccompanied on the common

waterfront and subsequently verbally accosted some young children whose

parents were renting Stevens’s beach house, the trial court stayed BFOA’s

enforcement of clarified article 4(a) until it could rule on Stevens’s abandonment

and estoppel arguments. In August 2013, the court ruled that Stevens’s renters

                                         - 27 -
No. 77830-7-I, 77401-8-I & 78430-7-I/28


could use the common waterfront until all issues regarding article 4(a) were

resolved, as long as Stevens maintained insurance covering his tenants’ and

guests’ use of the property, provided the names of his renters to BFOA, and agreed

to indemnify BFOA for any damages claimed by guests or tenants.

       Two years later, BFOA and the Owner Plaintiffs moved to dismiss Stevens’s

abandonment and estoppel claims. Stevens filed a cross motion for summary

judgment, arguing that even if the 1997 CC&Rs prohibited renter access to the

waterfront parcel, equity did not allow BFOA or any of the Owner Plaintiffs to

enforce this restriction under the doctrines of abandonment, equitable estoppel,

and laches.

       Stevens testified Brad Augustine, who sold BF Lot #3 to him, told him that

renters could have unrestricted access to the waterfront parcel. Stevens claimed

he had relied on these representations when deciding to purchase BF Lot #3. Brad

Augustine, the author of the 1997 CC&Rs, confirmed he told Stevens that BF Lot

#3 could be used for transient rentals when Stevens purchased the property. Brad

Augustine testified that renters were quite rare before he left Bellevue Farm in

2005. Furthermore, he understood that the 1997 CC&Rs gave the owners the right

to impose restrictions on renters’ use of the waterfront if rentals became a problem.

       Stevens provided declarations from several people who had rented property

in Bellevue Farm over the years, all of whom testified they had used the waterfront

area to dig clams, play in tide pools, fly kites on the beach, or walk the shoreline.

Other renters stated they had been told by Brad or Web Augustine that renters




                                       - 28 -
No. 77830-7-I, 77401-8-I & 78430-7-I/29


could use the waterfront without restriction. Web Augustine confirmed he never

told renters they could not use the waterfront.

       But many of the renters saw no one other than members of their own party

while there, and none of them had any interaction with any Bellevue Farm owners.

This testimony was consistent with the testimony of the Owner Plaintiffs, many of

whom testified they had only occasionally seen renters on the waterfront, or

because the lots are so large and far apart from each other, and not all of the

owners knew each other, they could not recognize someone as a renter or owner.

Some owners testified they did not know the other owners well enough to know

whether the people on the waterfront were authorized to be there or not. For many

who lived off island and were present infrequently, their knowledge of tenant usage

was limited. Anderson and Grosse, Hoopoe’s owners, were not even aware that

other lot owners were renting their homes to vacationers.

       To be sure, some owners knew renters were using the waterfront. These

Owner Plaintiffs asked renters to leave the waterfront area or asked renters if they

were house guests of any Bellevue Farm owner before asking them to leave.

       Based on this factual record, the trial court issued a letter ruling granting the

summary judgment motion brought by BFOA and the Owner Plaintiffs on

September 22, 2015. The court reasoned:

               It is undisputed that a few of the owners at Bellevue Farm[]
       have regularly rented out their properties during a few months each
       year and that, to some unknown extent, renters have been seen on
       the common area waterfront by at least a few of the other owners. It
       is also undisputed that the majority of the owners have not rented
       their properties and were either unaware that Article 4(a) was being
       violated or were not sufficiently concerned to instigate an
       enforcement action until recently. Despite that evidence the [c]ourt

                                        - 29 -
No. 77830-7-I, 77401-8-I & 78430-7-I/30


       is not persuaded that the history of non-enforcement of Article 4(a)
       manifests a subjective intent by the vast majority of the owners to
       abandon their rights under Article 4(a). The violations evidenced by
       Defendant’s pleadings are not so substantial and habitual that the
       [c]ourt could fairly conclude that Article 4(a) has been abandoned.
       Nor does the [c]ourt believe that any reasonable and fair-minded
       finder of fact could do so.

The court concluded that, on that record, Stevens’s defenses of abandonment,

equitable estoppel, and laches failed. It entered its written summary judgment

order, incorporating by reference its September 22, 2015 letter ruling.

          b. Permissible Commercial Agricultural Uses under Article 5

       Article 5 restricts the activities in which individual private lot owners can

engage. Unless authorized by article 6’s provisions on commercial development,

the individual lots are limited to private single-family use. Article 5(b) provides, “No

commercial use of any residential lot will be permitted other than for agricultural

purposes.” When adopted in 1994 and amended in 1997, the CC&Rs did not

define the phrase “agricultural purposes.” But a conservation easement granted

to the San Juan Preservation Trust in 1991 permitted “agricultural uses” and

defined that term as:

       “Agricultural uses” shall be held to mean breeding, raising, pasturing,
       and grazing livestock of every nature and description; beekeeping;
       breeding and raising fish, poultry, and other fowl; planting, raising,
       harvesting, and producing agricultural, horticultural, and forestry
       crops and products of every nature and description; and the primary
       processing, storage and sale, including direct retail sale to the public,
       of crops and products harvested and produced principally on the
       Property.

       Article 6 states, “except as specifically provided in Article 5 and this Article

6, no lot shall be used for commercial or multi-family residential purposes.”

However, article 6(a) allows the owner of BF Lot #1 to develop it for “commercial

                                         - 30 -
No. 77830-7-I, 77401-8-I & 78430-7-I/31


or townhouse condominium residential purposes.” The permitted commercial uses

listed in the 1997 CC&Rs include retail, office, or a mix of such uses. And article

6(b) provides that a portion of BF Lot #3, can be “developed and used as a small,

country inn-type restaurant with seating for no more than eighty-four (84) persons

and/or a bed and breakfast facility.”

       When the Owner Plaintiffs became concerned about Stevens’s plans for a

commercial winery, Straight and Baute drafted a second proposed amendment to

article 5 to add a new article 5(g). They left intact the provisions of article 6

permitting the previously designated permissible commercial activities on BF Lot

#3. But they identified those agricultural purposes deemed to be consistent with

the 1997 CC&Rs and the 1991 conservation easement and those deemed

inconsistent and therefore impermissible for all Bellevue Farm lots:

       (i) Agricultural Purposes Consistent With These Covenants and with
       the Conservation Easement.

       The following agricultural purposes are allowed as a commercial use:

       1.     Breeding, raising, pasturing and grazing of livestock.

       2.     Beekeeping.

       3.     Planting, raising and harvesting fruits, vegetables and other
       agricultural crops that are grown on the Property. Such crops may
       be sold, but pick-up of home grown crops are to be done in the
       quietest way possible, so as to not disturb or annoy neighbors.

       4.     Breeding and raising fish, poultry and other fowl.

       5.      Maintaining a “home office” within a single family residence
       that does not involve retail customers on site. The only allowed retail
       sales are for crops grown on the Property, in a “farm stand” facing
       Roche Harbor Road not to exceed 400 square feet with proper sound
       reduction and privacy landscaping so that the “farm stand” is not
       visible to any neighbors.


                                        - 31 -
No. 77830-7-I, 77401-8-I & 78430-7-I/32


       6.     Making hard cider or wine for consumption by a single Owner
       (not for retail sale to customers on site).

       ....

       (ii) Agricultural Purposes Which Conflict With These Covenants and
       Conflict With The Conservation Easement.

       The following uses or activities are prohibited as a commercial use:

       1.     The retail sale of goods or services to customers on site (other
       than crops grown on the Property, sold via a “farm stand” via Article
       5g(i)(5) above), which would bring cars, trucks, traffic and noise on
       to and in to a residential neighborhood which places a priority on
       privacy, quietude and seclusion.

       2.    The use of processing equipment or industrial equipment for
       the purpose of making alcoholic beverages for more than just
       personal consumption by the Owners. The sale of liquor, wine or
       alcohol on the Property is prohibited.

       ....

       5.     The processing of crops, fruits and/or vegetables that were
       not grown on the Property . . . .

The proposed amendment also included several provisions restricting the size of

any barn and its warehouse doors, restricting the size and number of any

accessory dwelling units or guest quarters on the parcels, and setting noise limits.

       At the August 4, 2012 special meeting, the Owner Plaintiffs voted to adopt

this change by a 12 to 4 vote, with Stevens casting the 4 “no” votes. Corson

recorded the amendment on August 24, 2012.

       Stevens moved for summary judgment, contending that article 5(g) was

invalid in its entirety because it placed new restrictions on the use of private

property without the consent of all property owners as required by Washington

case law. The court, in a February 6, 2013 oral ruling, concluded that the 1997



                                       - 32 -
No. 77830-7-I, 77401-8-I & 78430-7-I/33


CC&Rs permit “amendments” with less than 100 percent of the property owners’

approval but do not allow new restrictions to be imposed in that fashion. Article

5(g) included some new and different restrictions, such as the building height

limitations, the location of any buildings, and the limits on noise levels. Based on

the existence of a severability clause, the court struck these new provisions from

article 5(g).

           As to the other provisions of article 5(g), the court concluded that the

prohibition on the sale of alcohol or the making of alcoholic beverages for resale

was consistent with Bellevue Farm’s original plan of development as laid out in the

1997 CC&Rs. It determined that the 1991 conservation easement did not grant to

Stevens or any other property owner any rights; it merely set use limitations that

the San Juan Island Preservation Trust could enforce. And the 1994 CC&Rs were

more restrictive than the conservation easement, making it of little relevance in

interpreting the restrictive covenants. The court granted in part and denied in part

Stevens’s summary judgment motion.

           In the court’s written summary judgment order, it attached a revision to

article 5(g), deleting provisions it found to be void as a matter of law and modifying

provisions to make them legally valid. 21 Article 5(g) now provides:

                  g. Allowed and Prohibited Agricultural Purposes, and Uses
           and Activities that Are Not Agricultural. Article 1.a herein states that
           the primary purpose of these Covenants is to permit the use of
           individual lots for rural, recreational and residential activities which
           do not conflict with a high degree of privacy and seclusion for
           individual Owners. These Covenants also expressly acknowledge
           that the development restrictions and view protections of the August
           22, 1991 Conservation Easement (the “Conservation Easement”)

21
     No party challenged the trial court’s changes to article 5(g).

                                                  - 33 -
No. 77830-7-I, 77401-8-I & 78430-7-I/34


      bind the Property, which states that its purpose, in Section 1, is to
      “assure that the agricultural, wetlands and scenic values of the
      Property will be protected forever in their current condition”, and to
      “prevent any use of the Property that will significantly impair or
      interfere with the conservation values of the Property”, and to ensure
      the “protection of wetlands” and the “maintenance of views”, and to
      prevent the “construction, occupancy and use of more than one (1)
      single-family residence and appurtenance” per lot. Further Article
      5.b of these Covenants limits the commercial use of any lot solely to
      undefined agricultural purposes, and provides that there is to be no
      commerce conducted which involves the regular reception of
      customers on site and, similarly, no advertisements identifying any
      residential lot as a business location. Finally, Article 8 of these
      Covenants prohibits anything being done on an individual lot which
      becomes an annoyance or nuisance to the neighbors. Article 5 of
      these Covenants does not provide any definition or description of
      allowed or prohibited agricultural purposes. Accordingly, this new
      Article 5.g will allow and prohibit “agricultural purposes” consistent
      with these Covenants and the Conservation Easement, and will
      define what is not an agricultural purpose.

            (i) Agricultural Purposes Allowed by and Consistent with
      these Covenants and with the Conservation Easement.

                (a) The following farming, forestry and ranching uses are
          allowed for agricultural purposes:

                    1.     Breeding, raising, pasturing and grazing of
             livestock on the Property;

                   2.     Beekeeping;

                   3.     Planting, raising and harvesting fruits,
             vegetables and crops that are grown on the Property; and

                   4.     Breeding and raising fish, poultry and other fowl.

                 (b) The following uses may be done for agricultural
           purposes:

                     1.     Making hard cider or wine as a recreational
             activity for personal consumption by the Owner;

                   2.     [barn restrictions deleted by the court]




                                      - 34 -
No. 77830-7-I, 77401-8-I & 78430-7-I/35


                     3.    Maintaining a home office that does not involve
             retail customers on site; and

                    4.     Sale of crops grown on the Property in their
             natural post-harvest condition (without processing) at a “farm
             stand.” [remaining language regarding size and visibility to
             neighbors deleted by court]

             (ii) The following are prohibited uses and are not allowed,
      and/or are not agricultural purposes:

                 (a) The sale of liquor, wine, beer, hard cider or other
          alcoholic beverages. Put simply, selling alcoholic beverages is
          not an agricultural purpose;

                 (b) The use of industrial, manufacturing or processing
          equipment for distilling or making wine, liquor, beer, hard cider
          or alcoholic beverages for sale. Making alcoholic beverages for
          resale is not an agricultural purpose;

                 (c) The processing or slaughtering of cattle, crops or
          livestock which were not raised or grown on the Property;

                 (d) [noise restrictions deleted by court]

                 (e) [warehouse door restrictions deleted by court]

                 (f) If an Owner seeks to include residential living quarters
          within or as part of a barn, appurtenance or agricultural building,
          then all Owners must adhere to these Covenants, and to the
          Conservation Easement. [remaining language regarding limits
          to dwellings on parcels deleted by court]

              (iii) None of the provisions of this Article 5.g shall modify,
      change or limit the provisions of Article 6 of these Covenants.
      [remaining language regarding commercial use and sound
      restrictions deleted by court]

           2. Standard of Review

      Stevens challenges the trial court’s summary judgment determinations

regarding the validity of articles 4(a) and 5(g) of the 1997 CC&Rs. We review

summary judgment orders de novo, performing the same inquiry as the trial court.



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No. 77830-7-I, 77401-8-I & 78430-7-I/36


Wilkinson v. Chiwawa Cmtys. Ass’n, 180 Wn.2d 241, 249, 327 P.3d 614 (2014).

A court may grant summary judgment if the evidence, viewed in a light most

favorable to the nonmoving party, establishes that there is no genuine issue of any

material fact and that the moving party is entitled to judgment as a matter of law.

CR 56(c); Wilkinson, 180 Wn.2d at 249.

       Interpreting restrictive covenants is a question of law, and we employ rules

of contract interpretation to determine the drafter’s intent, which is a question of

fact. Wilkinson, 180 Wn.2d at 249-50. “‘[I]nterpretation of a particular covenant is

largely dependent upon the facts of the case at hand.’” Id. at 253 (quoting Mains

Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 827, 854 P.2d 1072

(1993)). Where the dispute is between homeowners who are jointly governed by

the covenants, “‘[t]he court’s goal is to ascertain and give effect to those purposes

intended by the covenants.’” Id. at 250 (quoting Riss v. Angel, 131 Wn.2d 612,

623, 934 P.2d 669 (1997)).

       In determining the drafter’s intent, we give covenant language its
       ordinary and common use and will not construe a term in such a way
       so as to defeat its plain and obvious meaning. We examine the
       language of the restrictive covenant and consider the instrument in
       its entirety. The lack of an express term with the inclusion of other
       similar terms is evidence of the drafters’ intent. Extrinsic evidence is
       used to illuminate what was written, not what was intended to be
       written. We, however, do not consider extrinsic evidence that would
       vary, contradict or modify the written word or show an intention
       independent of the instrument.

Id. at 250-51 (quotations, citations, and alterations omitted). This “context rule”

applies even when the disputed provision is unambiguous. Shafer v. Bd. of Trs.

of Sandy Hook Yacht Club Estates, Inc., 76 Wn. App. 267, 275, 883 P.2d 1387

(1994). Special emphasis is placed on “arriving at an interpretation that protects

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No. 77830-7-I, 77401-8-I & 78430-7-I/37


the homeowners’ collective interests.” Wilkinson, 180 Wn.2d at 250 (internal

quotation marks omitted) (quoting Riss, 131 Wn.2d at 623-24). “[W]here

reasonable minds could reach but one conclusion, questions of fact may be

determined as a matter of law.” Id.

              3. Validity of Article 4(a)

       Stevens argues the trial court erred in declaring article 4(a) valid. He relies

on Wilkinson to argue that because the language added to article 4(a) imposed

new restrictions on his property rights, a unanimous vote of BFOA members was

legally required. We reject this argument because we conclude, as did the trial

court, that BFOA did not impose new restrictions on renter access to the

waterfront.

       In Wilkinson, our Supreme Court addressed when homeowner associations

may enact new restrictive covenants without unanimous approval of the

homeowners. There, owners in the Chiwawa residential community had rented

their homes to unrelated persons on a short-term, for-profit basis for decades

without controversy. Id. at 247. As the number and frequency of rentals increased,

a majority of the owners voted to make vacation rentals of less than one month a

prohibited commercial use under the community’s covenants. Id. at 247-48. The

trial court ruled that the bar on short-term rentals was unenforceable. Id. at 248.

       The homeowner association appealed, arguing that under the terms of its

covenants, a majority of the owners could amend the covenants to prohibit short-

term vacation rentals. Id. at 249. Our Supreme Court rejected that argument. The

court recognized that an express reservation of power authorizing less than 100



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No. 77830-7-I, 77401-8-I & 78430-7-I/38


percent of property owners to adopt new restrictions is valid, “‘provided that such

power is exercised in a reasonable manner consistent with the general plan of the

development.’” Id. at 255-56 (quoting Shafer, 76 Wn. App. at 273-74). But “when

the general plan of development permits a majority to change the covenants but

not create new ones, a simple majority cannot add new restrictive covenants that

are inconsistent with the general plan of development or have no relation to

existing covenants.” Id. at 256. It concluded that the prohibition on short-term

rentals was unrelated to any existing covenant and could not be adopted by a

simple majority vote. Id. at 256-57.

       Under Wilkinson, the first question is whether the 1997 CC&Rs granted

BFOA the power to adopt new restrictions unrelated to any existing covenants or

simply to make changes to existing restrictions. If BFOA only has the power to

change existing restrictions, the second question is whether the changes are

consistent with BFOA’s general plan of development and have a relation to existing

covenants.

       Article 11 of the CC&Rs provides, “These covenants may be amended at

any time by a vote of sixty percent (60%) of the authorized votes.” This language

is almost identical to the provision at issue in Wilkinson, which the Supreme Court

found insufficient to constitute an authorization to enact new restrictions unrelated

to existing covenants. We therefore hold that article 11 permits only changes to

existing covenants and does not authorize the enactment of new restrictions.

Article 4(a), then, is valid only if it imposes no new restrictions unrelated to existing




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No. 77830-7-I, 77401-8-I & 78430-7-I/39


covenants and the changes are consistent with BFOA’s general plan of

development.

       We conclude the change made to article 4(a) did not impose new

restrictions on Stevens or any other Bellevue Farm owners. Article 4 conferred on

each owner the right to use the common waterfront. But that right was always

subject to the limitations specified in articles 4(a) through (e) and article 4’s express

reservation for “such other rules as [BFOA] may prescribe from time to time.”

       The 1997 CC&Rs, the applicable restrictions when Stevens purchased BF

Lot #3, limited use of the common waterfront and dock to “actual house guests”

and “guest[s] in the household” of owners. And a “person” who is not a “guest in

the household of an Owner” or “not accompanied by an Owner or a member of an

Owner’s family” may not use these common areas. Vacation renters clearly fall

into this latter category because they are not actual house guests of an owner or

guests in an owner’s household. Adding language stating that a tenant is not an

“actual house guest” is not the imposition of a new restriction. It is, as the Owner

Plaintiffs argue, a mere clarification of a pre-existing prohibition.

       Nevertheless, Stevens argues we must broadly construe the phrase “actual

house guests” to include his paying short-term vacation renters. This argument is

not textually based or based in common sense.               We “impute an intention

corresponding to the reasonable meaning of the words used. . . . [and,] generally[,]

give words in a contract their ordinary, usual, and popular meaning unless the

entirety of the agreement clearly demonstrates a contrary intent.”               Hearst




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Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503-04, 115 P.3d 262

(2005).

       Webster’s defines “houseguest” as “a guest staying overnight or longer.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1096 (1993). 22                      “Guest” is

primarily defined as “a person entertained in one’s house or at one’s table,” or “a

person to whom hospitality is extended,” especially someone “invited to participate

in some activity at the expense of another.” Id. at 1008; see also BLACK’S LAW

DICTIONARY 852 (11th ed. 2019) (“Someone who is entertained or to whom

hospitality is extended.”). The common meaning of the word “houseguest” does

not include paying clients.

       A guest can include “a person who lodges, boards, or receives refreshment

for pay (as at a hotel, boardinghouse, restaurant) whether permanently or

transiently.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at 1008. A “guest

in the household,” however, has a completely different meaning. A “household”

includes individuals “who dwell under the same roof and compose a family.” Id. at

1096. More specifically, it is a “social unit comprised of those living together in the

same dwelling place.” Id.; see also BLACK’S LAW DICTIONARY at 888 (a “family living

together,” or a “group of people who dwell under the same roof”).

       Based on these definitions, “actual house guest” and “guest in the

household,” as those terms are used in article 4(a), are meant to differentiate

vacation renters from family guests. Article 4(a)’s plain language and intent always




22
   We cite to Webster’s 1993 edition as that was the edition available when the 1997 CC&Rs were
adopted.

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No. 77830-7-I, 77401-8-I & 78430-7-I/41


protected the common areas for owners’ use and for use by guests actually staying

with the owners’ families.

             4. Stevens’s Defenses of Abandonment, Estoppel, and Laches

       Stevens next argues that if article 4(a)’s restriction on tenant use of the

waterfront is a valid covenant, the trial court erred in rejecting his equitable

defenses to enforcement of that covenant under the doctrines of abandonment,

equitable estoppel, and laches. He contends there were genuine issues of fact

warranting a trial on these equitable defenses. We reject this argument as well.

                  a. Abandonment

       Stevens argues that both BFOA, as a corporate entity, and the Owner

Plaintiffs abandoned their right to prohibit renters from using the waterfront. He

contends the deposition testimony of many of the Owner Plaintiffs and past renters

demonstrates a history of non-enforcement of the prohibition, rising to the level of

the abandonment of article 4(a)’s restrictions.

       Property owners have a right in equity to enforce restrictive covenants.

Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383

(1994). Article 9 of the 1997 CC&Rs explicitly provides that either BFOA or any

individual owner may institute a lawsuit to enjoin non-compliance with the

covenants.     But a number of equitable defenses are available to prevent

enforcement of a covenant, including abandonment, estoppel, and laches.

Mountain Park, 125 Wn.2d at 341.

       The defense of abandonment requires evidence that prior covenant

violations have “so eroded the general plan as to make enforcement useless and

inequitable.” Id. at 342; see also Mt. Baker Park Club, Inc. v. Colcock, 45 Wn.2d
                                       - 41 -
No. 77830-7-I, 77401-8-I & 78430-7-I/42


467, 471, 275 P.2d 733 (1954); Ronberg v. Smith, 132 Wash. 345, 352-53, 232 P.

283 (1925). “If a covenant applying to an entire tract has been habitually and

substantially violated so as to create an impression that it has been abandoned,

equity will not enforce the covenant.” Green v. Normandy Park Riviera Section

Cmty. Club, 137 Wn. App. 665, 697, 151 P.3d 1038 (2007), amended on

reconsideration (Apr. 6, 2007). But a few violations of covenants do not constitute

abandonment. Peckham v. Milroy, 104 Wn. App. 887, 890, 17 P.3d 1256 (2001).

“Violations must be material to the overall purpose of the covenant”; minor

violations are insufficient to support abandonment. Mountain Park, 125 Wn.2d at

342.

       Generally, whether evidence supports a finding of abandonment is a

question of fact. Green, 137 Wn. App. at 697; see also White v. Wilhelm, 34 Wn.

App. 763, 770, 665 P.2d 407 (1983) (“Applicability of [the abandonment] doctrine,

which is based on estoppel, is a factual determination.”).         But at summary

judgment, questions of fact may be determined as a matter of law when reasonable

minds can reach only one conclusion. Miller v. Likins, 109 Wn. App. 140, 144, 34

P.3d 835 (2001).

       Stevens presented evidence that the Owner Plaintiffs knew a few owners

were renting their homes to vacationing families. He also presented evidence that

Baute and Web Augustine did not restrict their renters’ use of the waterfront until

2012. But it is undisputed that most of the Owner Plaintiffs who lived off island full

time spent only a few days or weeks each year on Bellevue Farm. Many of the

Owner Plaintiffs testified they infrequently visited the waterfront to monitor the



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No. 77830-7-I, 77401-8-I & 78430-7-I/43


frequency of its use, or they had trees blocking their views of the waterfront, or

they were too far away to observe who was strolling the waterfront. The Owner

Plaintiffs stated they rarely saw anyone on the waterfront or when they did, they

had no idea whether the individuals were family members, actual houseguests of

owners, or paying tenants. And Anderson and Gross, the owners of Hoopoe, were

not even aware that some of the owners were renting their property to vacationers.

       Even if there was sufficient evidence to create a question of fact as to

whether Baute and Web Augustine abandoned their right to enforce article 4(a),

there is no evidence to suggest that any of the other Owner Plaintiffs did. Given

that article 9 of the 1997 CC&Rs permits any of the owners to seek to enjoin

violations, Stevens would have to establish that each and every Owner Plaintiff

knew of and acquiesced in habitual violations by tenants. He did not do so here.

       Stevens points to testimony from one or two Owner Plaintiffs who testified

they considered tenant use of the waterfront a necessary evil and “let things slide.”

But their testimony also made it clear that what they observed was isolated in

nature and occurred infrequently.      These same Owner Plaintiffs, when they

realized tenant use was increasing and interfering with their own use of the

waterfront, sought to clarify article 4(a) to ensure that any ambiguity in how tenants

could use the common areas was alleviated. Stevens failed to show that violations

of article 4(a) between 1997 and 2012 were so prevalent, habitual, and substantial

that they constituted an abandonment of article 4(a).

       Stevens also argues BFOA effectively abandoned enforcement of article

4(a) when Brad Augustine, the former BFOA president, actively marketed the



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No. 77830-7-I, 77401-8-I & 78430-7-I/44


waterfront to his renters and represented to future buyers, like Stevens, that their

renters could use the waterfront. He maintains that regardless of whether those

Owner Plaintiffs who bought their lots more recently were aware of violations, the

knowledge, acts, and representations of BFOA’s former president must be imputed

both to BFOA and to all the Owner Plaintiffs as members of BFOA who authorized

BFOA and its president to act on their behalf.

       Stevens relies on Deep Water Brewing, LLC v. Fairway Res. Ltd., 152 Wn.

App. 229, 215 P.3d 990 (2009), for the proposition that Brad Augustine’s

representations to Stevens and his non-enforcement of article 4(a) must be

imputed to BFOA and to each individual Owner Plaintiff.          We find Stevens’s

reliance on Deep Water Brewing to be misplaced.

       In that case, a restaurant owner entered into an easement and right-of-way

agreement with a developer in exchange for the developer’s promise to restrict

house heights to protect the restaurant’s lake view. Id. at 238. The trial court found

that the developer breached its agreement with the restaurant owner and that the

developer’s president and the homeowner association had tortiously interfered

with the agreement. Id. On appeal, the court affirmed the imposition of liability

against the president because he ignored provisions of the easement and right-of-

way agreement by recording covenants that allowed house heights greater than

the 16-feet he had promised to the restaurant owner. Id. at 266-67.

       The court also affirmed the trial court’s ruling that the homeowner

association was jointly and severally liable for the tortious interference committed

by the developer’s president. Id. at 270. The court concluded that the homeowner



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No. 77830-7-I, 77401-8-I & 78430-7-I/45


association had failed in its duty to evaluate building plans for compliance with the

restrictions the developer had promised to the restaurant owner.           Id.   The

homeowner association allowed lot owners to build homes in violation of that

agreement and impaired the views from the restaurant.            Id.   Under those

circumstances, the court concluded that the homeowner association was subject

to joint and several liability to the restaurant owner. Id.

       Deep Water Brewing did not address the issue of whether statements by a

homeowner association president can constitute the abandonment of a restrictive

covenant by the community as a whole or whether the president’s non-

enforcement of that covenant between 1994 and his departure from the community

in 2005 (the year Brad Augustine sold his Bellevue Farm lot) can be imputed to

Owner Plaintiffs who purchased their lots years later. We deem that case to be of

little analytical help here.

       Under these circumstances, we agree with the trial court that Brad

Augustine’s statement to Stevens that renters may use the waterfront cannot be

imputed to the homeowners unless they were aware of the statement and took

some action to indicate their subjective intent to abandon their right to enforce the

1997 CC&Rs. Under article 9 of the CC&Rs, “any person owning land in the

subdivision” may prosecute a civil action against anyone for violating or attempting

to violate the covenants. (Emphasis added.) As experts in Washington property

law noted:

              While courts sometimes discuss abandonment of restrictive
       covenants in a subdivision, there are serious problems with applying
       such a theory. First, if a court really means abandonment, analogous
       to the doctrine of abandonment that we see in the law of chattels,

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No. 77830-7-I, 77401-8-I & 78430-7-I/46


      then a subjective intent to abandon must be found. Indeed,
      subjective intent is usually the greatest stumbling block in finding
      abandonment of a chattel. Second, how could a covenant, created
      in a formally adopted and recorded subdivision plat, be relinquished
      by something so informal and amorphous as a wish that it not be
      enforced, implied by some number of departures from it? In the
      subdivision cases, it is hard to imagine that one could prove that the
      many (how many?) owners of lots in a subdivision had subjectively
      intended to abandon the covenant. Subdivision covenants may be
      terminated by agreement if the owners of lots burdened and
      benefited by them agree to terminate them—but, in the absence of a
      covenant allowing termination by a smaller percentage, all must
      agree. Why, then, should it not require an “abandonment” by all
      owners to work termination by abandonment?

17 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE:

PROPERTY LAW § 3.8, at 144-45 (2004). In the analogous context of an alleged

abandonment of an easement, the act evidencing abandonment must be

“unequivocal and decisive and inconsistent with the continued existence of the

easement.” Heg v. Alldredge, 157 Wn.2d 154, 161, 137 P.3d 9 (2006). Nonuse,

in the easement context, is not proof of an intent to abandon. Id.

      The same standard of proof to establish abandonment of a restrictive

covenant on a commonly owned parcel should apply here. An easement is a

property right that gives its holder limited rights to use, but not to possess, the

owner’s land. Admasu v. Port of Seattle, 185 Wn. App. 23, 36, 340 P.3d 873

(2014). The 1997 CC&Rs grant property rights to Bellevue Farm lot owners that

confer to each owner the right to use the common waterfront parcel. Indeed,

Stevens and the Owner Plaintiffs all hold an ownership interest in the common

waterfront, a property right conferring more rights than an easement. Because

Stevens seeks to eliminate a significant property right—the right to exclude others




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No. 77830-7-I, 77401-8-I & 78430-7-I/47


from the common waterfront—we conclude that proof of abandonment must rise

to the same level as evidence of abandonment of an easement.

       Under this formulation of the abandonment defense, mere non-enforcement

of article 4(a)—analogous to nonuse of an easement—would be insufficient as a

matter of law. Instead, Stevens must have proof that each of the Owner Plaintiffs

took an unequivocal and decisive act inconsistent with the existence of a restriction

on renter access to the waterfront.         Brad Augustine’s representations to

prospective owners become irrelevant unless those owners, like Stevens,

affirmatively granted unrestricted access to paying tenants.

       With perhaps the exception of Baute and Web Augustine, Stevens’s

evidence did not meet this test. While most of the Owner Plaintiffs knew Stevens,

Baute, and Web Augustine were renting their homes to short-term vacationers and

some of them saw people on the waterfront who may have been renters, the

evidence does not show that all of them took an unequivocal and decisive step to

forgo their rights under article 4(a). Indeed, Stevens conceded below that Hoopoe

did not abandon its rights to enforce article 4(a). Summary judgment on this

defense was appropriate.

                 b. Equitable Estoppel

       Stevens argues, alternatively, that BFOA and the Owner Plaintiffs should

be estopped from enforcing tenant restrictions in article 4(a) because former BFOA

president Brad Augustine represented to him that tenants were permitted access

to the common waterfront.




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No. 77830-7-I, 77401-8-I & 78430-7-I/48


        Courts do not favor equitable estoppel, and the party claiming estoppel must

prove each of its elements by clear, cogent, and convincing evidence. Wilhelm v.

Beyersdorf, 100 Wn. App. 836, 849, 999 P.2d 54 (2000). “Equitable estoppel is

based on the notion that ‘a party should be held to a representation made or

position assumed where inequitable consequences would otherwise result to

another party who has justifiably and in good faith relied thereon.’” Lybbert v. Grant

County, 141 Wn.2d 29, 35, 1 P.3d 1124 (2000) (quoting Wilson v. Westinghouse

Elec. Corp., 85 Wn.2d 78, 81, 530 P.2d 298 (1975)). Stevens must demonstrate

(1) BFOA or the Owner Plaintiffs made an admission or statement, or committed

an act inconsistent with the claim they are now asserting; (2) he reasonably relied

on BFOA’s or the Owner Plaintiffs’ admission, statement, or act; and (3) he would

be injured if BFOA or the Owner Plaintiffs are allowed to contradict or repudiate

the admission, statement, or act. Wilhelm, 100 Wn. App. at 849.

        Again, even if Brad Augustine’s statements can be imputed to BFOA,

Stevens has not demonstrated how those statements can be imputed to every

Owner Plaintiff, including many who purchased property in Bellevue Farm after

Brad Augustine left the community. The trial court properly struck the equitable

estoppel defense on summary judgment.

                     c. Laches

        Lastly, Stevens contends the trial court erred in rejecting his laches defense.

“‘Laches consists of two elements: (1) inexcusable delay and (2) prejudice to the

other party from such delay.’” 23 United Trades Org. v. State, 175 Wn.2d 537, 542,


23
   Earlier versions of laches included a third element—“knowledge or reasonable opportunity to
discover on the part of a potential plaintiff that he has a cause of action against a defendant.” United

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No. 77830-7-I, 77401-8-I & 78430-7-I/49


286 P.3d 377 (2012) (quoting State ex rel. Citizens Against Tolls v. Murphy, 151

Wn.2d 226, 241, 88 P.3d 375 (2004)). Laches is based on estoppel. Newport

Yacht Basin Ass’n of Condo. Owners v. Supreme NW, Inc., 168 Wn. App. 56, 76,

78, 277 P.3d 18 (2012). The “main component of laches is prejudice to the other

party.” Murphy, 151 Wn.2d at 241. Prejudice is not presumed; rather, Stevens

bears the burden of showing “whether and to what extent he . . . has been

prejudiced by the delay.” Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139

Wn.2d 840, 849, 991 P.2d 1161 (2000). Laches must be proved by clear and

convincing evidence. Arnold v. Melani, 75 Wn.2d 143, 148, 449 P.2d 800 (1968).

       Stevens argues he has allowed renters to use the waterfront since 2005

and the Owner Plaintiffs waited six years to enforce article 4(a). He contends the

delay was inexcusable and prejudicial because he is now prohibited from renting

to people who want a waterfront vacation experience—“the very reason that he

purchased the property in the first place.”

       But this argument is based on the same erroneous premise as his

abandonment and estoppel defenses—that anything former-president Brad

Augustine told Stevens in 2005 has to be imputed to all of the Owner Plaintiffs.

There is no legal basis for such an imputation.

       Additionally, at least three Owner Plaintiffs purchased their Bellevue Farm

lots four to five years after Stevens purchased his lot. Hoopoe bought its property

in 2009; the Dohertys bought their property in 2010, and the Kuppermanns




Trades Org., 175 Wn.2d at 542 n.3 (quoting Buell v. City of Bremerton, 80 Wn.2d 518, 522, 495
P.2d 1358 (1972)).

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No. 77830-7-I, 77401-8-I & 78430-7-I/50


purchased their property in 2009. Furthermore, it was undisputed that tenant use

of the waterfront area was infrequent until around 2011 when many realized that

tenant traffic may increase as a result of construction of large homes by Baute and

Kupperman on BF Lot #2B and Stevens’s construction of a large beach house on

BF Lot #3B. Laches “cannot apply where a plaintiff has no reason to believe that

legal action is necessary.” Newport Yacht Basin, 168 Wn. App. at 79. The

evidence does not create a genuine issue of fact that each of the Owner Plaintiffs

had a reason to believe it necessary to bring an enforcement action any earlier

than September 2012.        We conclude the trial court did not err by rejecting

Stevens’s laches defense. Accordingly, we conclude the clarification to article 4(a)

is valid and enforceable.

            5. Permissible Commercial Agricultural Activities under Article 5(g)

       Stevens contends the trial court erred in validating article 5(g)’s prohibition

on the manufacture and sale of alcoholic beverages, arguing that the prohibitions

are new restrictions that cannot be imposed absent unanimous consent of all

homeowners. We conclude article 5(g) is enforceable because it relates to pre-

existing covenants and is consistent with Bellevue Farm’s general plan of

development.

       First, the 2012 amendment explicitly referenced multiple related

covenants—article 1(a)’s statement of the covenants’ primary purpose to allow

rural uses not conflicting with owners’ privacy and seclusion; article 7’s

requirement that owners comply with the terms of the 1991 conservation easement

and limit construction to one single-family residence per lot; article 5(b)’s limitation



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No. 77830-7-I, 77401-8-I & 78430-7-I/51


on commercial uses other than for agricultural purposes; and article 8’s prohibition

on annoyances and nuisances.

          Specifically, article 5(b) provided:

                 No commercial use of any residential lot will be permitted
          other than for agricultural purposes. However, use of the property
          for business purposes (such as a home office) shall not be
          considered commercial use provided the work does not involve the
          regular reception of business clients and provided that the residence
          location shall not be advertised in any fashion as the business
          location of such person.

Article 5(g) clearly related to article 5(b) because it defined what is and is not a

permissible agricultural purpose. Stevens conceded this point below.

          Second, article 5(g) is consistent with Bellevue Farm’s general plan of

development. The primary purpose, as set out in article 1 of the 1997 CC&Rs, is

to ensure the privacy and seclusion for the owners living there.            Article 5(a)

provides that, unless specifically authorized in article 6, the use of individual lots is

limited to private, single-family residential use. Article 6 states that no lot may be

used for commercial purposes, except for certain specified permissible commercial

activities on BF Lot #1, belonging to Hoopoe, and BF Lot #3, belonging to Stevens.

Article 6(b) provides:

                 Lot 3. That portion of Lot 3 of the Bellevue Farm Short Plat
          comprising approximately two (2) acres . . . may be developed and
          used as a small, country inn-type restaurant with seating for no more
          than eighty-four (84) persons and/or a bed and breakfast facility.
          Such development and use shall be consistent with the type and
          quality of similar facilities in the area, such as the Duck Soup
          Restaurant on Roche Harbor Road.[24]




24
     https://www.ducksoupsanjuans.com/.

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No. 77830-7-I, 77401-8-I & 78430-7-I/52


There is nothing in article 6 permitting the construction and operation of a

commercial hard cider or alcohol manufacturing facility or distillery on BF Lot #3.

       Stevens contends that article 5(b) permitted him to use his property for any

“agricultural purpose” and that making and selling hard cider and wine is such an

agricultural purpose. But this argument ignores article 5(b)’s explicit prohibition on

any commercial use that involves the “regular reception of business clients” or the

advertising of a business location on that property. It is difficult to see how a

commercial winery or distillery could operate and abide by these restrictions. It

also ignores the explicit description of the only type of commercial activity deemed

appropriate for BF Lot #3—a small restaurant or a bed and breakfast facility.

       Stevens next argues his use of the property as a winery or distillery is

permissible under the 1991 conservation easement.           The easement defines

permissible “agricultural uses” as including the “primary processing, storage, and

sale,” and the “direct retail sale to the public, of crops and products harvested and

produced principally” on Bellevue Farm. One could argue that making hard cider

or wine is not the “primary processing” of apples or grapes and, thus, not

permissible under the conservation easement. But we need not reach that issue

here because the Bellevue Farm short plat, recorded after the 1991 easement,

expressly provided that “[i]f any private deed restrictions are in conflict with the

restrictions which appear on the plat map, the more restrictive provisions shall

govern.” Nothing prevented BFOA from defining permissible agricultural uses

more narrowly than defined in the easement, and under the terms of the short plat,

the more restrictive provisions apply.



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No. 77830-7-I, 77401-8-I & 78430-7-I/53


       Unlike the prohibition on short-term rentals in Wilkinson, article 5(g)’s

provisions defining permissible and impermissible agricultural activities are not

unrelated to pre-existing covenants and are consistent with the general

development plan for Bellevue Farm. Article 5(g) was thus validly adopted by

majority vote, making it permissible under Wilkinson. See 180 Wn.2d at 255-57.

   B. Partition of the Common Waterfront

          1. Relevant Facts

       Stevens asked the trial court to partition the common waterfront so that each

Bellevue Farm owner received fee title to some portion of that parcel. Stevens

argued that because he owned a 25 percent interest in Bellevue Farm’s common

waterfront parcel as a tenant in common with other owners, he had an absolute

right to partition under RCW 7.52.010. The trial court rejected this argument,

concluding that while the waterfront common area is owned by Bellevue Farm

owners as tenants in common, the owners accepted title with full knowledge that

the 1997 CC&Rs precluded partition.

          2. Standard of Review

       RCW 7.52.010 permits any person holding real property as tenants in

common to bring an action for partition of the land in kind or for partition by sale if

“partition cannot be made without great prejudice to the owners.” A partition action

is an equitable action. Kelsey v. Kelsey, 179 Wn. App. 360, 365, 317 P.3d 1096

(2014). Because a trial court has broad discretion and great flexibility to determine

whether partition is appropriate, we review an order denying partition for abuse of

discretion. Friend v. Friend, 92 Wn. App. 799, 804-05, 964 P.2d 1219 (1998).



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No. 77830-7-I, 77401-8-I & 78430-7-I/54


           3. Analysis

       Stevens argues the trial court erred in denying him the right to partition the

waterfront because his right to partition is absolute. This argument was firmly

rejected by our Supreme Court in Carter v. Weowna Beach Community Corp., 71

Wn.2d 498, 429 P.2d 201 (1967). In that case, the original grantor split the first

tract into 81 residential lots (Tract 1), and deeded to each residential lot owner an

undivided share in a second tract (Tract 2). Id. at 499. The deeds provided that

Tract 2 and the grantees’ interests in it were subject to covenants, reservations,

and restrictions requiring Tract 2 be used as a private community park and

watershed. Id. at 499-500.

       Several decades later, Carter filed a partition action against the other

landowners and the Weowna Beach Community Corporation, seeking the sale of

Tract 2. Id. at 501. At the conclusion of Carter’s case-in-chief at trial, the court

dismissed his partition action, concluding that the sale of Tract 2 “free and clear of

deed restrictions would be inconsistent with the intention of the original grantor,

and would be contrary to the deeded interests of the purchasers to use the entire

tract subject only to the rights of the 80 others to use it similarly.” Id.

       The Supreme Court affirmed, holding that partition in kind was improper

because the printed deeds were clear and unambiguous in expressing the

grantor’s intent that the park be held in common for the use of all owners and that

the purchasers understood their right in the land on which the park was built was

subject to the rights of the other purchasers to use it at the same time. Id. It further

held that partition by sale was similarly improper:



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No. 77830-7-I, 77401-8-I & 78430-7-I/55


          The right to sale, as a remedy guaranteed by statute, is not absolute
          in all cases of partition. It is not available where a cotenant, by his
          own acts, is estopped or has waived his right by express or implied
          agreement; or where his cotenant’s equitable rights will be minimized
          or defeated; or in violation of a condition or restriction imposed upon
          the estate by one through whom he claims.

Id. at 502 (citations omitted). The court concluded that because Carter purchased

his property with full knowledge of the rights and privileges held by the other

owners within the community, he could not claim the right to partition in a manner

that would destroy those rights.

          Carter is analogous to this case. At the time Bellevue Farm was created,

the San Juan County Code Chapter 16.40 Shoreline Master Program 25 (Ordinance

No. 161-1976) provided:

                 All waterfront subdivisions should include provision for
          common shoreline area. Common area should be provided at least
          from the line of ordinary high tide to the top of the bank. If tidelands
          are privately owned they should be included in common area.
          Access to common area should be provided to all lot owners.

Pursuant to this program, the Bellevue Farm short plat’s dedications declared that

“the shoreline common area shall be owned in common by all owners of lots within

the plat,” and the plat map expressly identified the common area of the waterfront.

The short plat also contained beach access restrictions:

                 Any future application for a dock, other moorage structure,
          and/or access to the beach, shall provide for the common ownership
          and use by all lot owners. . . . If a moorage facility and/or access to
          the beach is approved by the county, all lot owners shall hold an
          undivided interest in the facility. . . .

And article 4 of the 1997 CC&Rs provides:




25
     The Shoreline Master Program is now recodified as Chapter 18.50.

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No. 77830-7-I, 77401-8-I & 78430-7-I/56


               Each lot Owner shall have an equal right to enjoyment of the
       common land shown on the face of the plat and to access any
       common dock, and such right shall be appurtenant to and pass with
       the title of each lot. Said right shall be subject to the following
       covenants, and such other rules as [BFOA] may prescribe from time
       to time[.]

       Stevens purchased BF Lot #3 subject to these restrictions. He took title to

BF Lot #3 pursuant to a statutory warranty deed. The deed was explicitly made

“[s]ubject to covenants, conditions and restrictions of record” described in an

attached exhibit.   Included in the exhibit list were the 1997 CC&Rs and the

provisions set out in the dedication of the Bellevue Farm short plat.

       This record is essentially undisputed. At the inception of Bellevue Farm,

the clear intent was to set aside the waterfront for the use of all owners within the

community. Stevens purchased BF Lot #3 with full knowledge of the rights and

privileges that his fellow Bellevue Farm owners have in the waterfront. Partitioning

the common waterfront now would destroy the rights of these owners, contravene

the short plat’s declaration of intent, and violate article 4’s restriction of equal use

and enjoyment.

       Stevens argues that even if a partition in kind could cause substantial

prejudice to the Owner Plaintiffs, the court could ameliorate that prejudice by

granting the Owner Plaintiffs an easement over any portion of the waterfront

granted to Stevens. But we see no abuse of discretion in the trial court’s rejection

of this proposal. Owners may agree not to partition land for a reasonable period

of time. Schultheis v. Schultheis, 36 Wn. App. 588, 590-91, 675 P.2d 634 (1984).

Here, in the 1997 CC&Rs, the parties agreed to maintain the common ownership

of the waterfront parcel for a period of 25 years. Under Carter, courts may enforce

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No. 77830-7-I, 77401-8-I & 78430-7-I/57


this agreement and refuse to partition in kind or by sale when the doing so would

contravene restrictions imposed in deeds, short plats, and restrictive covenants.

The trial court did not err by dismissing Stevens’s partition claim.

      C. Stevens’s Motion to Disqualify Counsel for BFOA and the Owner Plaintiffs
         and the Order Sealing Conflict Waivers

              1. Relevant Facts

          In October 2015, Stevens moved to disqualify the attorneys who

represented both BFOA and the Owner Plaintiffs. 26 Stevens contended his claims

created a non-waivable conflict of interest such that joint representation was

impermissible under the Rules of Professional Conduct (RPC). The trial court

denied Stevens’s motion to disqualify counsel after an in camera review of written

conflict waivers executed by BFOA’s Board and the Owner Plaintiffs. The trial

court subsequently granted a motion to seal the conflict waiver letters. The court

found that the conflict waivers were protected by the attorney-client privilege; that

the public had no interest in seeing these documents; that under GR 15(c) and

Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982), BFOA and the

Owner Plaintiffs had a compelling interest in protecting their privileged

communications; and that the Owner Plaintiffs’ interest outweighed any public

interest in access to those communications. The court further found that redacting

the documents would not ensure that privileged information was fully protected.




26
     Hoopoe retained separate counsel in May 2013.

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No. 77830-7-I, 77401-8-I & 78430-7-I/58


            2. Standard of Review

        Stevens challenges the trial court’s denial of his motion to disqualify and its

decision to seal, rather than redact, the conflict waivers. We review de novo a

court’s decision to grant or deny a motion to disqualify counsel. Plein v. USAA

Casualty Ins. Co., 9 Wn. App. 2d 407, 412, 445 P.3d 574, review granted, 194

Wn.2d 1009, 452 P.3d 1233 (2019). We also review de novo a determination

whether an attorney has violated the RPC. Id. A trial court’s decision to seal

records is reviewed for abuse of discretion. Dreiling v. Jain, 151 Wn.2d 900, 907,

93 P.3d 861 (2004). 27

            3. Analysis

                    a. Disqualification

        Stevens argues the trial court should have disqualified the attorneys who

represented both BFOA and the Owner Plaintiffs because there was a non-

waivable conflict of interest between these parties. We conclude Stevens lacked

standing to seek disqualification of counsel.

        “[T]he majority, if not universal, rule is that only a party who has been

represented by the conflicted attorney has standing” to seek disqualification of that

attorney. Burnett v. Dep’t of Corr., 187 Wn. App. 159, 170, 349 P.3d 42 (2015).

“The standing rule draws its strength from the logic of the rule itself, which is

designed to protect the interests of those harmed by conflicting representations

rather than serve as a weapon in the arsenal of a party opponent.” Id. The


27
  Whether the court used the proper standard governing the sealing of records is a legal question
we review de novo. Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303, 307, 291 P.3d
886 (2013). Stevens does not contend the trial court used an incorrect legal standard in evaluating
whether to seal these conflict waivers.

                                              - 58 -
No. 77830-7-I, 77401-8-I & 78430-7-I/59


attorneys representing BFOA and the Owner Plaintiffs never represented Stevens.

Accordingly, he did not have standing to bring a motion to disqualify, and the trial

court did not err in denying the motion.

                     b. Sealing Conflict Waiver Letters

        Stevens maintains the trial court erred in sealing, rather than redacting,

attorney-client communications in the conflict waiver letters that BFOA and the

Owner Plaintiffs executed. 28

        Article I, section 10 of our state constitution requires that “[j]ustice in all

cases shall be administered openly.” Hundtofte v. Encarnación, 181 Wn.2d 1, 7,

330 P.3d 168 (2014). Under GR 15(c)(2), a court may seal records filed with that

court if it enters written findings that the specific sealing is justified by identified

compelling privacy or safety concerns that outweigh the public interest in access

to the court records. Our Supreme Court has held that to comply with article I,

section 10, courts must analyze a motion to seal under GR 15(c)(2) and the five-

step framework for evaluating a courtroom closure under Ishikawa. Hundtofte, 181

Wn.2d at 7.

        First, the party seeking to seal court records must show a need. Id. at 8. If

sealing is meant to protect a right other than the right to a fair trial, the proponent

must show a “serious and imminent threat to some other important interest.” Id.

(quoting Ishikawa, 97 Wn.2d at 37). In this case, BFOA and the Owner Plaintiffs


28
   BFOA and the Owner Plaintiffs contend Stevens did not preserve this issue for appeal because
he did not designate the trial court’s order granting the motion to seal in his notice of appeal. Under
RAP 2.4(a), Stevens did not need to designate that order in his notice of appeal if “the order or
ruling prejudicially affects the decision designated in the notice.” We choose to reach the merits of
the sealing order because the documents were clearly important to the trial court’s decision on the
motion to disqualify counsel, which Stevens designated in his notice of appeal.

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No. 77830-7-I, 77401-8-I & 78430-7-I/60


demonstrated that the documents—letters from trial counsel to their clients—

constituted attorney-client privileged communications and that disclosure of these

communications would jeopardize their litigation strategy. The threat of losing this

privilege was serious and imminent.

      Second, anyone present when BFOA and the Owner Plaintiffs moved to

seal documents must be given an opportunity to object. Id. The trial court afforded

Stevens, and any member of the general public present at the hearing, this

opportunity.

      Third, the court and the parties must analyze whether sealing is both the

least restrictive means available and effective in protecting the interests

threatened. Id. (quoting Ishikawa, 97 Wn.2d at 38). The court undertook this

analysis when it rejected Stevens’s request to redact rather than seal the

documents in their entirety:

      The public’s interest, other than the fact that they always have some
      interest, that’s the whole point of the constitution[al] provision. Other
      than that for these particular documents, I see no unique specific
      individualized need on the part of the public to see this.

      On the other hand, I see a great need to protect what’s in these
      documents from the defendants having access to it. And while some
      of this information might be appropriate to be allowed to be seen by
      going through a redaction, in this case, given the way this case has
      gone, I would be unable to confidently go through these documents
      and think that I could redact them in a way that what was unredacted
      would not in some fashion be used in a way that it shouldn’t be used.
      That’s just the way this case has gone.

In its written order, the court concluded, “Because the documents contain attorney-

client privileged information, redacting the documents would not assure [BFOA and




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No. 77830-7-I, 77401-8-I & 78430-7-I/61


the Owner Plaintiffs] that privileged information has been fully protected.” The

record supports this conclusion.

       Stevens argues that the identity of the individuals signing the conflict

waivers and the dates on which they each signed is not information protected by

the attorney-client privilege. The identity of an attorney’s client is generally not

privileged information. State v. Mendez, 157 Wn. App. 565, 585, 238 P.3d 517

(2010). But each client submitted a signed declaration under oath in which they

informed the court and Stevens that they had been advised of potential conflicts of

interest regarding the joint representation, did not believe a conflict existed, and

had signed waivers on three separate occasions. They identified the dates on

which they each signed the waivers. The clients’ identities are in the record,

unsealed, at the end of the declarations. In light of this record, it is unclear how

Stevens was harmed by the trial court’s decision not to disclose the individuals’

signatures as they appear on the waiver forms. 29

       Fourth, the court must weigh the competing interests of the party seeking

sealing and the public, and it must consider alternative methods to protect that

interest. Hundtofte, 181 Wn.2d at 8. The court conducted this weighing process

and held, in its written order, that “the compelling interest in protecting [BFOA’s

and the Owner Plaintiffs’] privileged communications far outweighs any public

interest in access to those communications.”




29
   Stevens also argues the order sealing the conflict waivers precluded him from verifying that
BFOA, the corporate entity, properly waived any conflict of interest. Given that Stevens lacks
standing to challenge any joint representation, we need not address this argument. We note,
however, that there is a conflict waiver executed by BFOA Board members in the record.

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No. 77830-7-I, 77401-8-I & 78430-7-I/62


       Finally, the order should be no broader than necessary to protect the

interest involved. Id. “If the order involves sealing of records, it shall apply for a

specific time period with a burden on the proponent to come before the court at a

time specified to justify continued sealing.” Ishikawa, 97 Wn.2d at 39. The order

in this case does not contain any such time deadline. But Stevens does not argue

that the court erred in failing to specify an end date to the order. Given the unique

nature of attorney-client privileged communications, these communications retain

their privileged status unless or until affirmatively waived by the clients themselves.

It was thus within the trial court’s discretion to not specify an end date in the order.

We conclude the trial court did not abuse its discretion in sealing the written conflict

waiver forms signed by BFOA and the Owner Plaintiffs.

   D. Stevens’s Claims under Chapter 64.38 RCW

           1. Relevant Facts

       Stevens alleged 10 separate violations of chapter 64.38 RCW by BFOA and

its Board. The trial court conducted a bench trial on these 10 claims and, in its

written findings of fact and conclusions of law, ruled in BFOA’s favor in whole or in

part on most of these allegations.

       Relevant to this appeal, the trial court concluded that BFOA and its Board

did not violate either RCW 64.38.020 or 64.38.025(1) by delegating authority to

Corson, the homeowner association president, to conduct BFOA business without

prior direction or authorization from the Board. With regard to the installation of

the fence, the court found that in September 2012, Corson arranged for and

directed the installation of a fence along the boundary line between Stevens’s



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No. 77830-7-I, 77401-8-I & 78430-7-I/63


property and the common waterfront parcel. He took this action after BFOA

members and BFOA’s attorney discussed the matter with him during, and

immediately following, the August 2012 special meeting of the membership. There

was no formal vote by the membership to install the fence, but a majority of the

members agreed with BFOA’s attorney that the fence was advisable. Corson, in

reliance on the direction he received from the members and BFOA’s attorney,

arranged to have the fence installed. The trial court explicitly found that the

installation of the fence was the act of BFOA’s members, and not the action of

BFOA’s directors. Stevens did not assign error to any of these findings and we,

therefore, accept them as true on appeal. See RAP 10.3(a)(4).

      Based on these findings, the court concluded that BFOA had no liability

under RCW 64.38.025(1) for the installation of the fence because that statute did

not apply to decisions made by the corporation or by individual association

members. It further concluded the statute did not require officers and directors to

control decisions made by the members. Because Stevens asserted his statutory

claims against only BFOA—and not against any member or individual director—

and it was the members and not the directors who decided to erect the fence, the

court concluded Stevens failed to establish that a director violated any duty

imposed under RCW 64.38.025(1).

          2. Standard of Review

      When we evaluate evidence in a bench trial, our review is limited to

determining whether substantial evidence supports any findings properly

challenged on appeal and whether the findings support the conclusions of law.



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No. 77830-7-I, 77401-8-I & 78430-7-I/64


Jensen v. Lake Jane Estates, 165 Wn. App. 100, 104, 267 P.3d 435 (2011). We

accept the unchallenged findings as true on appeal. Id. at 105. All reasonable

inferences are reviewed in the light most favorable to the prevailing party, in this

case, BFOA. Id. at 104. Questions of law are reviewed de novo. Sunnyside Valley

Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).

           3. Analysis

                   a. Stevens’s Alleged Violations of RCW 64.38.025(1)

       Stevens argues the trial court erred when it failed to conclude that BFOA

violated RCW 64.38.025(1) when BFOA allowed Corson to build the fence along

Stevens’s property line. But Stevens’s argument is based on a misinterpretation

of this statute.

       Homeowner association directors must exercise the same degree of care

and loyalty as an officer or director of a non-profit corporation under chapter 24.03

RCW.      Riss, 131 Wn.2d at 632 n.5; see also RCW 64.38.025(1) (“In the

performance of their duties, the officers and members of the board of directors

shall exercise the degree of care and loyalty required of an officer or director of a

corporation organized under chapter 24.03 RCW.”). RCW 24.03.127 provides that

a director shall perform the duties of a director “in good faith, in a manner such

director believes to be in the best interests of the corporation, and with such care,

including reasonable inquiry, as an ordinarily prudent person in a like position

would use under similar circumstances.” These statutes define the duties that

individual corporate directors owe to the corporation and to its members. Waltz v.

Tanager Estates Homeowners Ass’n, 183 Wn. App. 85, 91, 332 P.3d 1133 (2014).



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No. 77830-7-I, 77401-8-I & 78430-7-I/65


Therefore, the trial court correctly concluded that RCW 64.38.025(1) does not

impose any obligation or duty on BFOA, the corporation.

      Stevens did not allege at trial that any individual director violated RCW

64.38.025(1). Instead, he chose to allege that BFOA, the corporation, violated this

statute by installing the fence along his boundary line without any lawful

justification for doing so.   Stevens argues on appeal that Corson, as the

homeowner association’s president, violated a duty he owed to Stevens when he

erected the fence and that Corson’s liability under RCW 64.38.025(1) should be

imputed to BFOA because Corson acted as BFOA’s agent. Certainly, under

general tort law principles, the tortious conduct of an agent may be imputed to the

principal. City of Vancouver v. Pub. Emp’t Relations Comm’n, 180 Wn. App. 333,

351-52, 325 P.3d 213 (2014). But this argument was not advanced below. Under

RAP 2.5(a), we generally will not consider arguments raised for the first time on

appeal. Cameron v. Atl. Richfield Co., 8 Wn. App. 2d 795, 811, 442 P.3d 31

(2019). We decline to review this claim here.

      The trial court correctly concluded that BFOA was not liable under RCW

64.38.025(1) for the construction of the fence along Stevens’s boundary with the

common waterfront.

                 b. Stevens’s Alleged Violations of RCW 64.38.035(4)

      Stevens also argues the trial court erred in rejecting his claim that BFOA

violated RCW 64.38.035(4)’s notice and meeting requirements by failing to notify

Stevens of the Board’s intent to delegate to Corson the authority to construct the

boundary line fence.



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No. 77830-7-I, 77401-8-I & 78430-7-I/66


       RCW 64.38.035(4) requires a homeowner association board to conduct all

board of director meetings in the open for observation by all homeowners. If the

board wishes to meet in a closed session to take a vote on any issue, the board

must notify the homeowners of its intention to do so and state the purpose for the

closed session. If the board of directors holds a closed session, it must limit its

discussion to the topics set out in the notice to homeowners. No motion approved

in closed session is effective until the board reconvenes in open session and votes

in open session.

       Stevens contends BFOA effectively acted in “closed session” by authorizing

Corson to erect the fence along his boundary line and, in doing so, violated the

open meeting requirement of RCW 64.38.035(4).            The trial court disagreed,

concluding BFOA did not violate any open meeting requirement in the statute. It

based this conclusion on its finding that the Board simply did not meet, in either

open or closed session, in the years 2010 to 2013. And while the failure to meet

as a Board at least once annually violated BFOA’s bylaws and therefore violated

RCW 64.38.025(1), it did not violate RCW 64.38.035(4)’s requirements by failing

to meet on any other occasion.

       We reject Stevens’s contention that BFOA violated RCW 64.38.035(4) by

failing to hold a board meeting to discuss erecting the fence. The trial court found

that this small homeowner association had a practice of allowing the president to

conduct all of BFOA’s business without prior affirmative direction or authorization

from the Board. It concluded that BFOA’s bylaws expressly provided for this

delegation of authority. And the court explicitly found that the Owner Plaintiffs, not



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No. 77830-7-I, 77401-8-I & 78430-7-I/67


the Board, decided they wanted a boundary fence installed. Stevens did not

challenge these factual findings or legal conclusions. The trial court did not err in

rejecting Stevens’s argument that BFOA’s directors should have held a meeting

before allowing Corson to erect the fence. Accordingly, we uphold the trial court’s

conclusion that the Board did not violate the notice and meeting requirements of

RCW 64.38.035(4).

     E. Hoopoe’s Award of Attorney Fees

            1. Relevant Facts

        On November 20, 2015, Hoopoe moved to dismiss Stevens’s counterclaims

against it. The trial court granted the motion on March 26, 2016, awarding Hoopoe

$114,600.95 in attorney fees and $1,177.33 in costs on August 11, 2016. Stevens

does not challenge the dismissal of his claims against Hoopoe but argues the trial

court erred in awarding attorney fees to Hoopoe.

            2. Standard of Review

        Whether a party is entitled to an award of attorney fees is a question of law

reviewed de novo on appeal. Durland v. San Juan County, 182 Wn.2d 55, 76, 340

P.3d 191 (2014). The general rule in Washington is that attorney fees will not be

awarded for costs of litigation unless authorized by contract, statute, or a

recognized ground in equity. Id. The trial court deemed Hoopoe legally entitled to

an award of attorney fees under article 9 of the 1997 CC&Rs 30 and RCW




30
  Article 9 of the 1997 CC&Rs provides that BFOA or any person owning land in Bellevue Farm
may prosecute a civil action against another for violating or attempting to violate any covenants.
Any party bringing such an action is “entitled to recover from the violator all attorney fees, court
cost and other costs reasonably incurred.”

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No. 77830-7-I, 77401-8-I & 78430-7-I/68


4.84.330. 31 Whether a particular statutory or contractual provision authorizes an

award of attorney fees is also a legal question. Tradewell Grp., Inc. v. Mavis, 71

Wn. App. 120, 126, 857 P.2d 1053 (1993); see also Gander v. Yeager, 167 Wn.

App. 638, 647, 282 P.3d 1100 (2012) (reviewing de novo whether there is a legal

basis for awarding attorney fees through statute or contract). If the award of

attorney fees depends on a determination of who substantially prevailed, we

review that determination de novo as well. Hawkins v. Diel, 166 Wn. App. 1, 10,

269 P.3d 1049 (2011).

            3. Analysis

        Stevens argues Hoopoe was not entitled to an award of attorney fees

because the trial court did not find Hoopoe to be the substantially prevailing party

and because article 9 of the 1997 CC&Rs did not apply to the claims he asserted

against Hoopoe. We reject both arguments.

        First, the trial court made the requisite prevailing party finding. To allow

meaningful appellate review, an award of attorney fees must be accompanied by

findings of fact and conclusions of law establishing the fee award’s justification and

reasonableness. Leda v. Whisnand, 150 Wn. App. 69, 86-87, 207 P.3d 468

(2009). It is undisputed that the court dismissed all of Stevens’s counterclaims

against Hoopoe on summary judgment. In a letter ruling dated July 1, 2016, the

court expressly found that Hoopoe was the prevailing party on its motion for

summary judgment. And it laid out its reasoning as to why it had reached this


31
   RCW 4.84.330 provides that if a contract allows for an award of attorney fees to one of the
parties, then the prevailing party will be entitled to reasonable attorney fees, whether specified in
the contract or not. “An award of attorney fees under RCW 4.84.330 is mandatory, with no
discretion except as to the amount.” Hawkins v. Diel, 166 Wn. App. 1, 10, 269 P.3d 1049 (2011).

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conclusion. The court’s ruling was incorporated by reference into Hoopoe’s final

judgment against Stevens. The final judgment included an explicit conclusion of

law that “Hoopoe is the prevailing party on its Motion for Summary Judgment of

Dismissal.” Stevens’s contention that the court failed to find Hoopoe to be the

prevailing party lacks merit.

        Second, the trial court did not err in concluding that Stevens’s claims against

Hoopoe fell within the scope of article 9. The language of Stevens’s counterclaims

1 and 2 unambiguously alleged violations of the 1997 CC&Rs. In Stevens’s

counterclaim 1, he alleged Hoopoe violated the 1997 CC&Rs by voting to adopt

the proposed clarification to article 4(a).            In counterclaim 2, Stevens alleged

Hoopoe violated the 1997 CC&Rs by approving the construction of the fence along

his boundary with the common waterfront.                  Stevens specifically titled these

counterclaims as “Violations of Declaration.” 32 (Emphasis added.) In counterclaim

7, Stevens asserted that Hoopoe’s alleged violations constituted a nuisance under

article 9 of the 1997 CC&Rs. Finally, in counterclaim 10, Stevens incorporated by

reference the covenant violations alleged in counterclaim 1.

        The trial court’s conclusion is further supported by Stevens’s own pleadings.

In summary judgment pleadings relating to article 4(a), Stevens explicitly argued

that the clarification to article 4(a) passed by the Owner Plaintiffs, including

Hoopoe, was “inconsistent” with the 1997 CC&Rs. And in Stevens’s own request


32
   Stevens defined “Declaration” as the Declaration of the Amended and Restated Protective
Covenants, Conditions and Restrictions of Bellevue Farm Owners Association—essentially the
1997 CC&Rs. Although Stevens’s complaint referred, at times, to the 1997 CC&Rs as “CC&Rs”
rather than as the “Declaration,” the trial court was satisfied that the counterclaims alleging
violations of the “Declaration” were, in fact, alleging violations of the 1997 CC&Rs. We agree with
this conclusion.

                                              - 69 -
No. 77830-7-I, 77401-8-I & 78430-7-I/70


for relief, he sought “reasonable attorney fees and costs as allowed by the

[CC&Rs] and Washington law.” As the trial court noted, “by alleging that Hoopoe

violated the CC&Rs, [Stevens] created a risk that Hoopoe could be ordered to pay

[his] attorney’s fees and costs under Article 9 of the CC&Rs. Having created that

risk, [Stevens] cannot now seek to avoid an award to Hoopoe under Article 9 of

the CC&Rs.” The trial court did not err in concluding that Hoopoe was entitled to

an award of attorney fees under article 9 of the 1997 CC&Rs.

       In the alternative, Stevens maintains his counterclaims simply mirrored the

Owner Plaintiffs’ request for declaratory and injunctive relief. But article 9 explicitly

permits parties to seek injunctive relief for violations of the 1997 CC&Rs. That is

exactly what Stevens did here.         Based on the plain language of Stevens’s

counterclaims, he alleged violations of the 1997 CC&Rs, thus triggering article 9’s

attorney fee provision. We affirm the attorney fees awarded to Hoopoe.

   F. Order Certifying Hoopoe’s Judgment as Final under CR 54(b)

           1. Relevant Facts

       A year after the trial court dismissed all counterclaims against Hoopoe,

Hoopoe moved to certify its judgment against Stevens as final under CR 54(b).

The trial court granted the motion on November 3, 2017, finding that delaying entry

of a final judgment would cause Hoopoe to suffer substantial hardship and injustice

because the litigation had been pending for nearly five years, and although all

claims against Hoopoe had been dismissed, tort claims still remained to be

adjudicated between Stevens and other Owner Plaintiffs. It further found Hoopoe

was incurring legal expenses because it had to retain legal counsel to monitor



                                         - 70 -
No. 77830-7-I, 77401-8-I & 78430-7-I/71


events in the case even though Hoopoe was no longer a party. It also found

Hoopoe had listed its lots for sale and had demonstrated a need to sell them. The

continuing lawsuit, however, impeded Hoopoe’s ability to sell the property, and the

delay was forcing it to pay property taxes, insurance, and other fees that it would

not incur if it could sell the lots. The trial court determined that delaying entry of

final judgment “pending resolution of peripheral issues is unjust and will continue

to inflict substantial hardship on Hoopoe.” It expressly concluded that “[t]here is

no just reason for delay in entry of Hoopoe’s final judgment.” The court entered

judgment in favor of Hoopoe and determined that post-judgment interest would

begin to accrue as of the date of judgment.

       On March 2, 2018, after the 2017 jury trial, the court entered final judgment

on all remaining claims and counterclaims between Stevens, BFOA, and the

Owner Plaintiffs other than Hoopoe.

          2. Standard of Review

       Stevens argues the trial court erred in certifying Hoopoe’s judgment as final

under CR 54(b). “A trial court’s decision to enter judgment under CR 54(b) is

reviewed for abuse of discretion.” William G. Hulbert, Jr. v. Port of Everett, 159

Wn. App. 389, 404, 245 P.3d 779 (2011).

          3. Analysis

       “CR 54(b) makes an immediate appeal available in situations in which it

could be unjust to delay entering a judgment on a distinctly separate claim until the

entire case has been fully adjudicated.” Nelbro Packing Co. v. Baypack Fisheries,




                                        - 71 -
No. 77830-7-I, 77401-8-I & 78430-7-I/72


L.L.C., 101 Wn. App. 517, 522, 6 P.3d 22 (2000). A trial court may certify a

judgment as final under CR 54(b) when there is:

       (1) more than one claim for relief or more than one party against
       whom relief is sought; (2) an express determination that there is no
       just reason for delay; (3) written findings supporting the
       determination that there is no just reason for delay; and (4) an
       express direction for entry of the judgment.

Id. at 523. Stevens appears to challenge only the trial court’s finding that there

was no just reason to delay entry of judgment in Hoopoe’s favor.

       We find no abuse of discretion in the trial court’s decision.        We have

previously indicated that courts should consider the following factors to determine

whether there was no just reason for delay:

       “(1) [T]he relationship between the adjudicated and the
       unadjudicated claims, (2) whether questions which would be
       reviewed on appeal are still before the trial court for determination in
       the unadjudicated portion of the case, (3) whether it is likely that the
       need for review may be mooted by future developments in the trial
       court, (4) whether an immediate appeal will delay the trial of the
       unadjudicated matters without gaining any offsetting advantage in
       terms of the simplification and facilitation of that trial, and (5) the
       practical effects of allowing an immediate appeal.”

Hulbert, Jr., 159 Wn. App. at 406 (alterations in original) (quoting Lindsay Credit

Corp. v. Skarperud, 33 Wn. App. 766, 772, 657 P.2d 804 (1983)). “‘[T]here must

be some danger of hardship or injustice through delay which would be alleviated

by immediate appeal.’” Doerflinger v. N.Y. Life Ins. Co., 88 Wn.2d 878, 882, 567

P.2d 230 (1977) (alteration in original) (quoting Campbell v. Westmoreland Farm,

Inc., 403 F.2d 939, 942 (2d Cir. 1968)).

       The record reveals the trial court considered these factors. As to the first

factor, the court found that all claims involving Hoopoe had been “fully and finally

dismissed,” and the remaining general tort claims had nothing to do with Hoopoe.
                                        - 72 -
No. 77830-7-I, 77401-8-I & 78430-7-I/73


It correctly concluded that the adjudicated claims and the remaining claims were

distinct and unrelated.

       The second and fourth factors also weighed in favor of certification. The

court found that “[a]n immediate appeal of this judgment would not delay trial on

the tort claims” and that the tort claims “would be appealed on entirely different

grounds and involve different issues.” Although the trial court did not explicitly

address the potential for mootness, the third factor, it did not seem likely that the

need for appellate review would be affected by future trial court rulings.

       The court also evaluated the practical effects of allowing an immediate

appeal of the Hoopoe judgment, the final factor. It found that by allowing an

immediate appeal, Hoopoe could avoid incurring attorney fees for monitoring a

case in which it was no longer a party. And Hoopoe demonstrated it had listed its

Bellevue Farm lots for sale and needed to sell them to avoid further property taxes,

insurance, and other costs to hold the properties.

       Under these circumstances, the trial court did not abuse its discretion in

certifying Hoopoe’s judgment as final under CR 54(b).

   G. Stevens’s Voluntary Dismissal of Fence Claims against BFOA and Owner
      Plaintiffs, except Glen Corson

          1. Relevant Facts

       Stevens, BFOA, and the remaining Owner Plaintiffs proceeded to a jury trial

on the remaining claims and counterclaims in November 2017. The claims at the

start of trial were: (a) BFOA’s timber trespass claim against Stevens based on his

July 2012 removal of an apple tree from the common waterfront parcel; (b) a timber

trespass claim alleged by Baute, Birchfield, and the Kuppermans against Stevens

                                       - 73 -
No. 77830-7-I, 77401-8-I & 78430-7-I/74


based on his removal of a willow grove on their joint boundary in January 2011;

(c) Dr. Kupperman’s negligent infliction of emotional distress claim against

Stevens arising out of the alleged shotgun incident in August 2012; and

(d) Stevens’s three counterclaims against BFOA and the Owner Plaintiffs relating

to the boundary fence—namely the allegations that the boundary fence violated

his right to equal access to the common waterfront in violation of the 1997 CC&Rs,

that the fence constituted a nuisance, and that the fence was a “spite fence” in

violation of RCW 7.40.030.

        Before opening statements, Stevens moved to voluntarily dismiss, without

prejudice, all of the remaining counterclaims against BFOA and the Owner

Plaintiffs, with the exception of Corson. Stevens explained:

               The [c]ourt – at the last hearing there was this debate about
        who were proper parties on the fence. The [c]ourt has already ruled
        that the fence was built by Mr. Corson and that he built that on his
        own, not as a, you know, [it] wasn’t the HOA’s fence. So we had this
        discussion at the last hearing about who is a proper defendant.

                We looked closely at that issue, and given the [c]ourt’s prior
        ruling on Mr. Corson and the fact that Article 9 allows Mr. Stevens to
        prosecute a claim against any owner for a nuisance to bring the fence
        down, Mr. Corson is the only defendant that we need, and that’s
        essentially it. 33

        The trial court indicated that if it granted Stevens’s motion, it would do so

only with prejudice. It asked Stevens if he wanted to withdraw the motion; Stevens

declined to do so but acknowledged that “the statute [of limitations] is past on being

able to refile.” The trial court dismissed the claims with prejudice.


33
   By voluntarily dismissing the counterclaims against all Owner Plaintiffs except Corson, Stevens
argued that the trial court should preclude Baute from participating as counsel in any portion of the
trial on his counterclaims “because he’ll no longer be a defendant.” The decision thus appears to
have been strategic on Stevens’s part.

                                               - 74 -
No. 77830-7-I, 77401-8-I & 78430-7-I/75


          2. Standard of Review

       Stevens appeals the trial court’s decision to dismiss the parties with

prejudice. We review an order granting a CR 41 motion to dismiss with prejudice

for manifest abuse of discretion. Escude v. King County Pub. Hosp. Dist. No. 2,

117 Wn. App. 183, 190, 69 P.3d 895 (2003). Such abuse occurs when the ruling

is manifestly unreasonable or discretion was exercised on untenable grounds. Id.

CR 41(a)(4) states that in the context of voluntary dismissals, “[u]nless otherwise

stated in the order of dismissal, the dismissal is without prejudice.” “Under the

plain language of the rule it is evident that a trial court may dismiss a claim with

prejudice, otherwise the language of the rule would be superfluous.” Escude, 117

Wn. App. at 191. Thus, “a trial court has the discretion to grant a nonsuit with or

without prejudice, especially as a part of the court’s inherent power to impose a

sanction of dismissal in a proper case.” Id.

          3. Analysis

       Stevens argues the trial court abused its discretion in dismissing his claims

with prejudice because the dismissal did not fall within the limited circumstances

in which a dismissal with prejudice is warranted. We disagree. A trial court does

not abuse its discretion when it dismisses claims with prejudice that would be time-

barred if refiled. See, e.g., id. (dismissal with prejudice appropriate when the

applicable statute of limitations has run on the claims). Stevens informed the trial

court that the statute of limitations on his fence claims had expired.

       Moreover, when parties have litigated claims extensively for over five years,

the court has ruled on multiple motions for summary judgment, the parties have



                                       - 75 -
No. 77830-7-I, 77401-8-I & 78430-7-I/76


been through a bench trial, and a party chooses for strategic reasons to dismiss

claims against multiple parties on the eve of a subsequent jury trial, it is not a

manifest abuse of discretion for a court to dismiss the claims with prejudice, even

if the statute of limitations has not run. The trial court properly exercised its

discretion to grant Stevens’s motion to dismiss but to do so with prejudice.

   H. The Jury’s Spite Fence Findings

          1. Relevant Facts

       During pretrial motions in limine, Stevens asked the trial court to exclude

any evidence and all argument that BFOA and the Owner Plaintiffs had a legitimate

reason for constructing the boundary fence. He argued that because the fence

interfered with his right to use his property and the common waterfront, there could

be no valid justification for erecting the fence. Corson argued the jury had to decide

whether any interference was unreasonable, making his reasons for constructing

the fence relevant to defend against Stevens’s claims. The trial court granted in

part and denied in part Stevens’s motion, but it ultimately allowed Corson to offer

extensive evidence regarding the reason he originally erected the fence and the

reasons other Owner Plaintiffs wanted the fence to remain.

       At trial, Stevens testified that on September 16 or 17, 2012, contractors

began building a fence along the common waterfront boundary with his property.

Corson testified he was the person who made the decision to build the fence. He

used BFOA funds to construct the fence but did not seek Board approval before

he spent the money because the bylaws gave him the authority to incur these kinds




                                        - 76 -
No. 77830-7-I, 77401-8-I & 78430-7-I/77


of expenses. Corson admitted he knew the fence would make it harder for Stevens

to rent his property.

       The cedar split rail fence was originally built with five openings. According

to Corson, Baute decided where to place the fence openings, depicted on the

image below with yellow dots:




These openings, however, did not allow Stevens to roll his trailered dinghy boat

into the water. When Corson heard, in the course of this lawsuit, that Stevens was

challenging the adequacy of the openings, he removed a nine-foot section at the

far corner of the property line, on the south side of Stevens’s orchard. But Stevens

could not pull his boat across his lot and through the orchard to reach that opening.




                                       - 77 -
No. 77830-7-I, 77401-8-I & 78430-7-I/78


And one of the openings nearest to the beach house was partially blocked by a

large tree:




       Stevens testified that the fence was erected in retaliation for his refusal to

sign a revocable license agreement, the document that BFOA members approved

at the August 4, 2012 special meeting, which was intended to allow renters limited

waterfront access.

       The Owner Plaintiffs who testified had differing reasons as to why they

thought the fence was appropriate, but their credibility was hotly contested at trial.

       Matthew Straight, for example, testified the fence was a “fair, reasonable

and appropriate way” of defeating any adverse possession claim Stevens asserted

to the common waterfront. But he acknowledged that Stevens had attempted to

adversely possess only a small part of the apple orchard in response to being sued

by BFOA for timber trespass after removing an apple tree. Birchfield testified she

felt the fence was appropriate to resolve disputes with Stevens over mowing the




                                        - 78 -
No. 77830-7-I, 77401-8-I & 78430-7-I/79


common waterfront, abating mosquitos, and preventing children driving golf carts

from traversing Stevens’s land.

       Pigott testified the fence helped her special needs teenage son understand

that he is not allowed to walk onto Stevens’s property. She also felt the fence was

an important “symbol” that “we value the common waterfront” in response to

Stevens’s partition claim. Tom Tucci testified the fence was an appropriate step

to demarcate the boundary after Stevens refused to allow Blake Barrett’s wedding

to occur on the waterfront in front of Stevens’s BF Lot #3B. And Christine Doherty

thought the fence was installed to resolve trespass issues and to protect the

waterfront parcel from Stevens’s adverse possession and partition claims.

       But there was significant evidence to demonstrate that erecting the fence

was retaliatory in nature. For example, the fence does not run the entire length of

the waterfront; it is only in front of Stevens’s parcel. There is no fence separating

the Baute/Kupperman property or any other Bellevue Farm or South Bellevue

Farm lot from the waterfront, despite the fact that many of these owners rent their

properties to short-term vacationers.

       When jurors asked Baute why he felt it was appropriate to decide where to

place openings in the fence without input from Stevens, Baute testified he did so

because Stevens had “recently fired a shotgun at me, refused to meet with me,

and told me to get off his property.” Baute had to concede that an opening directly

in front of Stevens’s beach house would have been much more convenient and

practical than the locations he selected.




                                        - 79 -
No. 77830-7-I, 77401-8-I & 78430-7-I/80


       Additionally, the way in which Corson and Baute maintained the fence after

it was erected also raised issues regarding their true motives. Stevens explained

to the jury that during the lawsuit, he obtained a court order allowing his renters to

access the waterfront, pending the outcome of the case. But while the stay was in

place, Stevens discovered someone had placed “Owners Only” signs along the

fence and had installed chains across all of the openings.

       Corson testified he did not install the chains or tape, but he told Baute that

he could do so “if they were necessary.” Corson could not say how long the chains

had been across the openings, indicating Baute was the person “given the

assignment of dealing with the chains.” But he knew ahead of time that Baute

intended to install both chains and duct tape to keep Stevens’s renters off the

waterfront.

       Baute confirmed he installed the chains across four of the openings in the

fence in the summer of 2016 as a way of enforcing article 4(a). But Stevens’s

renters were hopping over the chains and leaving items on the common dock. So

he added more chains.




                                        - 80 -
No. 77830-7-I, 77401-8-I & 78430-7-I/81




After Stevens removed the chains to allow his young son to get through, someone

replaced the chain, put up more “No Trespassing” signs, and even used duct tape

to prevent people from walking through the opening.




Baute confirmed he was the one who added the “No Trespassing” sign and the

duct tape because the tenants continued to breach the barrier.




                                     - 81 -
No. 77830-7-I, 77401-8-I & 78430-7-I/82


       Stevens testified that someone removed the chains and tape just before the

jury traveled to Bellevue Farm for a site inspection in December 2017. Baute

disputed this testimony, claiming Stevens removed the chains and tape

approximately 10 days after Baute put them up. Corson conceded the chains and

tape were “a horrible idea.”

       The jury returned a verdict for Stevens and against Corson on December

14, 2017. 34 It found that the fence violated Stevens’s rights under the 1997 CC&Rs

to equal and non-exclusive access, use, and enjoyment of the common waterfront,

that the fence was installed for the purpose of interfering with Stevens’s usage

rights, that the fence was a nuisance, and that the fence was a spite fence under

RCW 7.40.030.

       In March 2018, the trial court entered final judgment on the jury’s verdict,

decreeing that the fence between Stevens’s property and the common waterfront

was a nuisance in violation of article 9 of the 1997 CC&Rs and a spite fence under

RCW 7.40.030. The trial court ordered Corson to remove the fence.

           2. Standard of Review

       Corson challenges several rulings from the jury trial. He argues the trial

court erred in giving Instruction 18 and in excluding evidence regarding the

reasons Corson and other Owner Plaintiffs supported the installation of the fence.

Stevens cross appeals, arguing the trial court erred in allowing Corson to introduce




34
  The jury awarded monetary damages of $1,800 to BFOA and the Owner Plaintiffs for the cost to
replace the apple tree Stevens inadvertently cut down in 2012 and awarded $10,000 to Baute,
Birchfield, and the Kuppermans to replace a willow grove Stevens removed in 2011. Stevens has
not appealed these jury awards.

                                           - 82 -
No. 77830-7-I, 77401-8-I & 78430-7-I/83


any evidence that he and the other Owner Plaintiffs had legitimate reasons for

constructing the fence.

       This court reviews jury instructions de novo and evidentiary rulings for

manifest abuse of discretion. Cox v. Spangler, 141 Wn. 2d 431, 439, 442, 5 P.3d

1265 (2000).       A trial court abuses its discretion “[w]hen it takes a view no

reasonable person would take, or applies the wrong legal standard to an issue.”

Id. at 439.

              3. Analysis

                    a. Instruction 18

       Corson argues Instruction 18 misstated the law and misled the jury. We

conclude Corson failed to properly object to this instruction below and has not

preserved the issue on appeal.

       CR 51(f) requires each party to submit proposed instructions and to object

to any instructions proposed by any other party: “The objector shall state distinctly

the matter to which counsel objects and the grounds of counsel’s objection,

specifying the number, paragraph or particular part of the instruction to be given or

refused and to which objection is made.” This requirement allows the trial court to

remedy any error before instructing the jury. Washburn v. City of Federal Way,

178 Wn.2d 732, 746-47, 310 P.3d 1275 (2013). “The pertinent inquiry on review

is whether the exception was sufficient to apprise the trial judge of the nature and

substance of the objection.” Crossen v. Skagit County, 100 Wn.2d 355, 358, 669

P.2d 1244 (1983). If the trial court understands the reasons a party objects to an




                                        - 83 -
No. 77830-7-I, 77401-8-I & 78430-7-I/84


instruction, the party has preserved the objection for review. Washburn, 178

Wn.2d at 747.

       Corson objected to Instruction 18 but merely said, “Plaintiffs object to use

of this instruction in its entirety.” There is nothing in the record to indicate Corson

adequately informed the trial court of the grounds for the objection. We conclude

Corson’s objection to Instruction 18 was inadequate under CR 51(f) to preserve

this error for appeal.

                  b. Evidentiary Rulings

       Stevens argues the trial court abused its discretion in admitting evidence

that Corson or any other Owner Plaintiff had a legitimate reason for putting up the

fence. Corson argues the trial court erred in excluding some of the evidence he

felt was relevant for why he and the other Owner Plaintiffs wanted to erect the

fence. We reject both evidentiary arguments.

       Stevens moved to exclude any evidence that BFOA and the Owner Plaintiffs

had a reason for interfering with his use and enjoyment of the common waterfront,

arguing that one co-tenant has no right to interfere with the use and enjoyment of

property by another co-tenant. He maintained that the reasons Corson had for

building the fence were irrelevant; the only issue was the effect of the fence on his

access or use of the common waterfront. The trial court rejected this argument:

       I think they have the right to put up the fence, to begin with, because
       co-tenants, any co-tenant has the right to put an improvement on the
       commonly owned property, and that’s what they did. Now the
       question is: Did that fence unreasonably interfere? So I’m going to
       deny [Stevens’s] motion. . . .




                                        - 84 -
No. 77830-7-I, 77401-8-I & 78430-7-I/85


          But I will deny the motion of that [sic] that the reasons for the fence
          are to be – that there should be no mention or testimony or evidence
          as to the reasons for putting the fence up.

The trial court’s reasoning was correct.

          Under the spite fence statute, RCW 7.40.030, Stevens had to prove that the

fence (1) damaged his enjoyment of the property, (2) was designed as the result

of malice or spitefulness, and (3) served no useful or reasonable purpose.

Baillargeon v. Press, 11 Wn. App. 59, 66, 521 P.2d 746 (1974). The jury was

instructed on these elements of this claim. To rebut Stevens’s evidence of malice

or spitefulness, or evidence that the fence had no useful purpose, Corson had the

right to present evidence of the purpose he and the other Owner Plaintiffs believed

the fence served. The jury was then tasked with evaluating the credibility of both

parties’ evidence. Because the evidence was relevant, the trial court did not abuse

its discretion in denying Stevens’s motion to exclude the evidence.

          Corson makes the opposite argument—that the court erred in excluding

some of the evidence he wanted to offer to justify the fence. Corson maintains

that exclusion of the following evidence prejudiced him at trial: (1) Stevens’s 2009

e-mail stating he no longer wanted to be a part of BFOA, (2) evidence that Stevens

refused to sign a tenancy in common agreement as to the waterfront property,

(3) evidence that Stevens fired his shotgun at other homeowners near the

boundary fence, 35 (4) testimony from BFOA’s real estate expert, Sam Buck, as to

the lawful purposes of the fence and the positive effect of the fence on Stevens’s

property values, (5) evidence of a contemporaneous boundary line and usage


35
     There was extensive evidence regarding this shotgun incident before the jury.

                                                - 85 -
No. 77830-7-I, 77401-8-I & 78430-7-I/86


dispute involving a communal tennis court, (6) evidence that Stevens provided

watercraft to his rental tenants, and (7) evidence that the San Juan Preservation

Trust approved of the boundary line fence.

        But Corson does not explain why the trial court’s rulings were an abuse of

discretion or what effect, if any, this evidence would have had on the outcome of

the case. Corson merely states that had the evidence been included, “the jury may

not have returned the same verdict” because it affected his ability to present his

case.

        We refuse to address this issue because Corson did not adequately brief it.

RAP 10.3(a)(6) requires an argument “together with citations to legal authority and

references to relevant parts of the record.” Corson presented no authority to

support his claimed error. And the only citations to the record are to Stevens’s

motions in limine seeking to exclude the evidence, not to the court rulings being

challenged. Stevens pointed out the inadequacy of the briefing in his response

brief, but Corson did not remedy the insufficient argument in his reply. Because

the inadequate briefing prevents meaningful review, we decline to review Corson’s

evidentiary arguments. See Hernandez v. Stender, 182 Wn. App. 52, 60, 358 P.3d

1169 (2014) (court will decline to review alleged evidentiary error where party fails

to cite to any portion of record to support argument).




                                       - 86 -
No. 77830-7-I, 77401-8-I & 78430-7-I/87


   I. The Injunction Requiring Removal of the Spite Fence

          1. Relevant Facts

       After the jury rendered its verdict, Stevens noted for presentation a

proposed final judgment that included an injunction requiring Corson to remove the

fence. The language Stevens proposed read:

       [T]he [c]ourt hereby [o]rders a mandatory injunction compelling the
       abatement and removal of the fence in front of Chad Stevens’s
       property at Bellevue Farm. The [c]ourt further [o]rders a permanent
       injunction against the future erection of a fence or similar structure
       along any portion of the boundary line between Chad Stevens’s
       property and the common waterfront at Bellevue Farm. This Decree
       is binding on all parties in this matter.

BFOA and the Owner Plaintiffs, including Corson, opposed this requested

injunctive relief. Mathew Straight, now BFOA’s president, submitted a declaration

in which he asked the court to order nothing more than the removal of a small

section of the fence. Corson testified he had been instructed by Straight not to

touch the fence, and Corson indicated he “will not disregard his instructions.”

       At a February 2, 2018 hearing, the trial court stated its intention to enter an

order requiring Corson to remove the fence, but it rejected Stevens’s proposed

language imposing a permanent injunction on future fences. Corson argued that

when Stevens chose to dismiss his fence claims against all Owner Plaintiffs, other

than Corson, the court lost jurisdiction over them and could not order them to

remove the fence. The court agreed that because the other Owner Plaintiffs had

been dismissed, it could not enter an order obligating them to do anything. But it

reasoned that because both Corson and Stevens are part owners of the common

waterfront, the court could think of no other way in which to enforce the jury’s



                                        - 87 -
No. 77830-7-I, 77401-8-I & 78430-7-I/88


verdict other than to issue an injunction against Corson.                   From the court’s

perspective, Corson put the fence up so he should be the one to tear it down. The

final judgment thus included an order compelling Corson to remove the fence.

Corson challenges this injunction.

            2. Standard of Review

        We review a trial court’s issuance of an injunction for abuse of discretion.

Lenhoff v. Birch Bay Real Estate, Inc., 22 Wn. App. 70, 74, 587 P.2d 1087 (1978).

“Where the decision or order of the trial court is a matter of discretion, it will not be

disturbed on review except on a clear showing of abuse of discretion, that is,

discretion manifestly unreasonable, or exercised on untenable grounds, or for

untenable reasons.” Id. at 75 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12,

26, 482 P.2d 775 (1971)).

            3. Analysis

        Corson argues the trial court erred in issuing the injunction because it failed

to conduct an analysis of the factors set out in Lenhoff. 36 Stevens contends

Lenhoff is inapplicable because an injunction is “mandatory” under RCW 7.40.030.

We disagree with both arguments.

        RCW 7.40.030 provides that “[a]n injunction may be granted to restrain the

malicious erection . . . of any structure intended to spite, injure or annoy an

adjoining proprietor.” (Emphasis added.) The statute further provides that when

an owner has maliciously erected a spite structure with this intent, “a mandatory


36
  We reject Corson’s argument that a “tasteful boundary line fence” cannot be a spite fence as a
matter of law. First, Corson cites no authority for this proposition. Second, under Baillargeon, a
fence can be a spite fence under RCW 7.40.030 if maliciously erected, even if tasteful or erected
along a boundary. 11 Wn. App. at 66.

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injunction will lie to compel its abatement and removal.” RCW 7.40.030. The

phrase “mandatory injunction” is a term of art. It does not mean that the trial court

lacks discretion to deny injunctive relief. Rather, a mandatory injunction is “an

injunction that orders an affirmative act or mandates a specified course of

conduct.” BLACK’S LAW DICTIONARY at 937-38. Whether a court issues a mandatory

injunction—for instance, compels a party to take some specified action—is

discretionary. Lenhoff, 22 Wn. App. at 74-75; see also Holmes Harbor Water Co.

v. Page, 8 Wn. App. 600, 603, 508 P.2d 628 (1973). In exercising this discretion,

the court should evaluate:

       (a) the character of the interest to be protected, (b) the relative
       adequacy to the plaintiff of injunction in comparison with other
       remedies, (c) the delay, if any, in bringing suit, (d) the misconduct of
       the plaintiff if any, (e) the relative hardship likely to result to the
       defendant if an injunction is granted and to the plaintiff if it is denied,
       (f) the interest of third persons and of the public, and (g) the
       practicability of framing and enforcing the order or judgment.

Lenhoff, 22 Wn. App. at 75.

       The trial court explicitly discussed the Lenhoff factors in analyzing Stevens’s

requested injunctive relief. First, the trial court evaluated the nature and character

of Stevens’s interest in the removal of the fence. It concluded that his interest was

high in light of the jury’s findings that the fence was erected for the purpose of

interfering with his rights under the 1997 CC&Rs to equal and exclusive access,

use, and enjoyment of the common waterfront. The trial court also reasoned that

if Corson and the Owner Plaintiffs have an interest in demarcating the boundary

between Stevens’s property and the waterfront, Corson could have done so in

much less restrictive ways.



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       Second, the trial court looked at options other than injunctive relief and

concluded that there really was no alternative method to enforce the jury’s verdict.

The evidence at trial supports the jury’s finding that the fence denies Stevens the

same access and use of the waterfront that other homeowners enjoy.

       Third, the court considered Corson’s argument that Stevens had “unclean

hands” by committing timber trespass, but it also found that Corson, BFOA, and

the Owner Plaintiffs had similarly committed misconduct by blocking the fence

openings with “No Trespassing” signs, chains, and tape at a time when the court

had stayed enforcement of article 4(a). It concluded that not enforcing the jury’s

verdict would diminish the impropriety of their actions.

       Fourth, the trial court was aware of and considered BFOA’s contention that

the removal of the fence contravened the wishes of the Owner Plaintiffs. But article

9 of the 1997 CC&Rs, to which all Owner Plaintiffs are bound, explicitly gives the

court the authority to enjoin any nuisances and violations of the 1997 CC&Rs.

Because the jury found that the fence violated the 1997 CC&Rs and was a

nuisance, article 9 gave the court the legal authority to order the fence’s removal,

regardless of the wishes of BFOA or the Owner Plaintiffs.

       Fifth, the trial court noted that the interests of BFOA’s members, as tenants

in common, were not affected by the removal of the fence because the boundary

line can, and should, be demarcated by other means. This was supported by

Corson’s testimony that the boundary lines on other properties were demarcated

in other ways, such as by privacy hedges and fence posts.




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        Finally, the trial court understood that Corson, the only remaining defendant

and the only person it could order to remove the fence, was no longer BFOA’s

president. But it did not find that this fact justified not issuing an injunction because

Corson, as a Bellevue Farm owner, has a property interest in the common

waterfront. He has an obligation to refrain from committing nuisance and violating

the 1997 CC&Rs. Practically speaking, as the trial court noted, Corson erected

the fence, so he can take it down. 37 Thus, the trial court reasoned that an injunction

requiring removal of the fence could have been enforced against Corson.

        We conclude the trial court engaged in a sufficient inquiry under Lenhoff

and did not abuse its discretion when it issued the injunction because such relief

was explicitly authorized by article 9 of the 1997 CC&Rs. 38

     J. Order Denying Fees to BFOA and Owner Plaintiffs under Article 9 of the
        1997 CC&Rs

            1. Relevant Facts

        At the conclusion of the 2016 bench trial, the trial court found BFOA to be

the prevailing party. BFOA then moved for an award of attorney fees under RCW

64.38.050.      The trial court denied the request, concluding the case was not

appropriate for such an award.




37
   Corson argues that because he has no legal authority to remove the fence, the trial court’s
injunction is improper. Counsel for BFOA told this court at oral argument that, despite the jury’s
finding that the fence violates the 1997 CC&Rs, BFOA intends to interfere with Corson’s
compliance with the court’s injunction. Corson and BFOA should carefully consider the
ramifications of disobeying or aiding and abetting another in disobeying a lawful court order.
38
   BFOA and the Owner Plaintiffs also assert on appeal that an injunction was inappropriate
because the trial court stated that there were lawful reasons for the fence. They argue that if true,
the fence cannot be a spite fence as a matter of law. This argument ignores the jury’s finding that
the fence was a nuisance, a spite fence, and violated the 1997 CC&Rs. The trial court was bound
by this factual determination whether it agreed or not.

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       After Stevens voluntarily dismissed all remaining claims against BFOA and

the Owner Plaintiffs during the jury trial in 2017, BFOA and the Owner Plaintiffs

again moved for an award of attorney fees under article 9 of the 1997 CC&Rs,

arguing that they—like Hoopoe—were the prevailing parties on those

counterclaims alleging violations of the 1997 CC&Rs. The trial court denied the

request for attorney fees, finding that no party substantially prevailed and that each

party prevailed on major issues throughout the litigation.

       BFOA and the Owner Plaintiffs appeal the denial of their request for attorney

fees against Stevens.

          2. Analysis

                 a. Fees under RCW 64.38.050

        BFOA argues the trial court erred in denying its claim for attorney fees

under RCW 64.38.050.         RCW 64.38.050 provides that “[t]he court, in an

appropriate case, may award reasonable attorneys’ fees to the prevailing party.”

The statute gives the trial court the authority to award attorney fees to a

homeowner association “to recoup expenses incurred in defending against

nonprevailing homeowners.” Casey v. Sudden Valley Cmty. Ass’n, 182 Wn. App.

315, 333 n.16, 329 P.3d 919 (2014). But such an award is not mandatory. The

term “may” in a statute generally confers discretion. Freeman v. Freeman, 169

Wn.2d 664, 671, 239 P.3d 557 (2010); see also Hernandez v. Edmonds Memory

Care LLC, 10 Wn. App. 2d 869, 875-76, 450 P.3d 622 (2019) (attorney fee statute




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providing that court “may” award fees to prevailing party gives the court discretion

to do so).

       We review a discretionary decision to award attorney fees for an abuse of

discretion. Eagle Point Condo. Owners Ass’n v. Coy, 102 Wn. App. 697, 715, 9

P.3d 898 (2000). A trial court abuses its discretion if its decision is “‘manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons.’”

Tribble v. Allstate Prop. & Cas. Ins. Co., 134 Wn. App. 163, 170, 139 P.3d 373

(2006) (quoting State ex rel. Carroll, 79 Wn.2d at 26).

       In Roats v. Blakely Island Maintenance Commission, Inc., 169 Wn. App.

263, 284, 279 P.3d 943 (2012), the trial court denied a homeowner’s request for

attorney fees under RCW 64.38.050, despite finding 18 violations of RCW

64.38.035. This court affirmed, reasoning:

       Here, the trial court determined that the Roatses had proved 18 of
       the 28 purported open meetings violations. However, it determined
       that an affirmative grant of relief was not warranted on these 18
       claims. Under these circumstances, the trial court’s denial of the
       Roatses’ request for an award of attorney fees was within the range
       of acceptable choices available to the court. Thus, the trial court did
       not abuse its discretion by denying the Roatses’ request.

Id.

       In this case, the trial court ruled in favor of BFOA on 7 of Stevens’s 10

claimed violations of chapter 64.38 RCW. But, as in Roats, the trial court decided

the case was not an appropriate one for an award of fees because although BFOA

prevailed on some claims, it did not prevail on all of them. The court found that

BFOA’s directors failed to meet regularly in violation of its bylaws, violating RCW

64.38.025(1).   And the court was troubled by the homeowner association’s



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“undocumented practice” of allowing its president to conduct BFOA business

without direction from or authorization by the Board or BFOA members. These

reasons for denying BFOA’s request for attorney fees were within the range of

acceptable choices available to the court. Therefore, it did not abuse its discretion

in denying BFOA’s request.

                 b. Fees under Article 9 of the 1997 CC&Rs

       BFOA and the Owner Plaintiffs, excluding Corson, argue that they became

the substantially prevailing party on all counterclaims covered by article 9 of the

1997 CC&Rs when Stevens voluntarily dismissed his remaining claims against

them on the eve of trial. We agree.

       Whether a party is a prevailing party is a mixed question of law and fact and

is reviewed under the error of law standard. Eagle Point Condo., 102 Wn. App. at

706. “As a general rule, a prevailing party is one who receives an affirmative

judgment in its favor.” Cornish Coll. of the Arts v. 1000 Virginia Ltd. P’ship, 158

Wn. App. 203, 231, 242 P.3d 1 (2010). “If neither party wholly prevails then the

party who substantially prevails is the prevailing party, a determination that turns

on the extent of the relief afforded the parties.” Transpac Dev., Inc. v. Oh, 132 Wn.

App. 212, 217, 130 P.3d 892 (2006). If neither party obtains a final judgment

against the other, neither party is entitled to attorney fees. Wachovia SBA Lending,

Inc. v. Kraft, 165 Wn.2d 481, 492, 200 P.3d 683 (2009).

       When evaluating whether BFOA or the Owner Plaintiffs were the

substantially prevailing party, the trial court considered the outcome of all the

claims and counterclaims—some of which fell within the scope of article 9’s



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attorney fee provision and some which did not. Article 9 authorizes an award of

attorney fees only to the party who prevails in an action for violations of the 1997

CC&Rs. Under RCW 4.84.330, “prevailing party” means the party in whose favor

final judgment is rendered.    When article 9 is read in conjunction with RCW

4.84.330, the prevailing party is the party in whose favor judgment was entered on

claims falling within the scope of article 9. Here, judgment was entered in favor of

BFOA and the Owner Plaintiffs on Stevens’s dismissed article 9 counterclaims.

For this reason, the trial court erred in concluding that BFOA and the Owner

Plaintiffs were not the prevailing party on these counterclaims. We therefore

reverse the trial court’s order denying an award of attorney fees to BFOA and the

Owner Plaintiffs and remand for a determination as to which claims fell under

article 9 and for which the Owner Plaintiffs may recover attorney fees.

       We note, however, that attorney fees are recoverable strictly for those

services related to the causes of action which allow for fees. Travis v. Wash. Horse

Breeders Ass’n, 111 Wn.2d 396, 410, 759 P.2d 418 (1988). BFOA and the Owner

Plaintiffs are entitled to attorney fees incurred in defending Stevens’s

counterclaims for violations of the 1997 CC&Rs. But they are not entitled to

attorney fees incurred in prosecuting their claims against Stevens or the fees

incurred in defending Corson from Stevens’s fence claims. Given that the same

attorneys represented BFOA, the Owner Plaintiffs, and Corson, the trial court must

determine on remand if BFOA and the Owner Plaintiffs can segregate recoverable

attorney fees from non-recoverable fees. And if BFOA and the Owner Plaintiffs

interfere with Corson’s obligation to remove the spite fence, the trial court is also



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free to evaluate whether these parties have forfeited their claim to attorney fees by

interfering with Corson’s duty to abate a violation of the 1997 CC&Rs.

                      III. ATTORNEY FEES ON APPEAL

       Article 9 and RCW 4.84.330 provided for attorney fees at trial, and these

same provisions support an award on appeal. Atlas Supply, Inc. v. Realm, Inc.,

170 Wn. App. 234, 241, 287 P.3d 606 (2012). Because Hoopoe prevailed on

appeal, it is entitled to reasonable fees and costs subject to its compliance with

RAP 18.1. Because we reverse the trial court’s denial of attorney fees to BFOA

and to the Owner Plaintiffs under article 9 of the 1997 CC&Rs, we award these

parties attorney fees incurred on this single issue, subject to their compliance with

RAP 18.1. We deny Stevens’s request for attorney fees.

                                IV.    CONCLUSION

       We affirm the jury’s verdict and trial court’s rulings, with the exception of the

order denying attorney fees to BFOA and the Owner Plaintiffs for the fees incurred

in defending against Stevens’s counterclaims for violations of the 1997 CC&Rs.

       Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.




WE CONCUR:




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