                                                                         FILED
                                                                        MAY 2, 2017
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




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

JOSEPH D. HARWOOD, Trustee of         )
MONEY TALKS TRUST; MONEY              )               No. 33024-9-111
TALKS L.L.C., a Washington limited    )
liability company; and C & H BFB,     )
L.L.C., a Washington limited liability)
company,                              )
                                      )               UNPUBLISHED OPINION
                   Respondents,       )
                                      )
       v.                             )
                                      )
FIRST AMERICAN TITLE                  )
INSURANCE COMPANY, a foreign          )
insurance company,                    )
                                      )
                   Respondent,        )
                                      )
BEL FRANKLIN APARTMENTS LLC, a )
Washington limited liability company, )

                    Appellant.

      FEARING, C.J. -Defendant Bel Franklin Apartments LLC appeals a trial court's

denial of a motion to compel arbitration. Because the covenants controlling the parties'
No. 33024-9-III
Harwood v. First American Title Ins. Co.


relationship direct the arbitrator to determine arbitrability, we reverse the trial court and

remand for entry of an order staying this lawsuit.

                                           FACTS

       On April 11, 2007, Bell Franklin LLC (Bell Franklin), a Washington limited

liability company formed in 2005, created a condominium association, The Bel. Joseph

Harwood then served as manager of Bell Franklin. Bell Franklin must be distinguished

from defendant Bel Franklin Apartments LLC, formed in 2008. Spokane Housing

Ventures serves as agent of Bel Franklin Apartments.

       The Bel condominium association blankets a building at 225 N. Division, in

Spokane, and includes commercial space on the first level and residential units on the

upper three levels. In April 2007, Bell Franklin owned the entire building.

       In April 2007, Bell Franklin recorded a "Declaration and Covenants, Conditions,

Restrictions and Reservations for The Bel, a Condominium" (covenants). Clerk's Papers

(CP) at 109. The covenants bind the entire building and individual units to be sold by

Bell Franklin. The covenants bind any person or entity who gains an interest in the

building or an individual unit.

       The title for article 12 of the covenants is "Management of Condominium." CP at

53. The article contains fourteen sections named "Administration of the Condominium,"

"Management by Declarant," "Election and Approval of Board," "Management by

Board," "Authority of the Association," "Borrowing by Association," "Association

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Harwood v. First American Title Ins. Co.


Records and Funds," "Association as Trustee," "Common Elements, Encumbrance,"

"Termination of Contracts and Leases," "Notice and Opportunity to be Heard,"

"Acquisition of Property," "Lawsuits or Arbitration Proceedings," and "Dispute

Resolution." CP at 53-63. The section on lawsuits and arbitration proceedings addresses

the approval needed by condominium unit owners for the association to commence

litigation. The first two paragraphs of section 12.14 regarding dispute resolutions

declares:

              12.14.1 Policy - Mediation. Condominium living requires that all
      Unit Owners and the Association cooperate in good faith and deal fairly in
      performing their duties and exercising their rights under this Declaration. If
      any party to a dispute determines that the dispute cannot be resolved
      without intervention, then that party shall give notice (the "Arbitration
      Demand") to all other parties to the dispute and the Association demanding
      that the dispute be submitted to mediation and arbitration pursuant to this
      section. All parties to the dispute shall than participate in a nonbinding
      mediation for 45 days after the Arbitration Demand. The mediator shall be
      chosen by the Association. If the mediation is not successful, the dispute
      shall be resolved by binding arbitration conducted pursuant to Section
      12.14.2 below. The parties confirm that by agreeing to this alternate
      dispute resolution process, they intend to give up their right to have any
      dispute decided in court by a judge or jury.
              12.14.2 Binding Arbitration. If binding arbitration is required to
      resolve a dispute, it shall be conducted in Spokane, pursuant to RCW
      7.04.060, provided, that the total award by a single arbitrator (as opposed to
      a panel of three arbitrators) shall not exceed $50,000, including interest,
      attorneys' fees and costs. If any party demands a total award greater than
      $50,000, there shall be three (3) neutral arbitrators. If the parties cannot
      agree on the selection of the arbitrator(s) within ten (10) days of the
      arbitration demand, the arbitrator(s) shall be selected by the administrator
      of the American Arbitration Association (AAA) office in Seattle from its
      Large Complex Case Panel or from any group of arbitrators with equivalent
      professional credentials as determined by the administrator. Each arbitrator

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Harwood v. First American Title Ins. Co.


       shall be an attorney with at least fifteen (15) years' experience in
       commercial or real estate law in Spokane County. The arbitrator(s) shall
       determine whether the dispute is subject to binding arbitration under this
       section. All statutes of limitations which would otherwise be applicable
       shall apply to any arbitration proceeding hereunder.

CP at 63-64 (emphasis added).

       "Compliance with Declaration" is the title to article 18 of the covenants. CP at 87.

The article reads:

               18.1 Enforcement. Each Owner and the Association shall comply
       strictly with the provisions of this Declaration, the Bylaws and Rules, as the
       same may be lawfully amended from time to time, and with all decisions
       adopted pursuant to this Declaration, the Bylaws and the Rules. Failure to
       comply shall be grounds for an action to recover sums due for damages, or
       injunctive relief or both, maintainable by the Board (acting through its
       officers on behalf of the Owners) or by the aggrieved Owner on his own
       against the party (including any Owner or the Association) failing to
       comply.
               18.2 No Waiver of Strict Performance. The failure of the Board in
       any one or more instances to insist upon the strict performance of this
       Declaration, of the Bylaws, or to exercise any right or option contained in
       such documents, or to serve any notice or to institute any action, shall not
       be construed as a waiver of a relinquishment for the future of such term,
       covenant, condition or restriction, but such term, covenant, condition or
       restriction shall remain in full force and effect. The receipt by the Board of
       payment of any assessment from an Owner, with knowledge of any such
       breach shall not be deemed a waiver of such breach, and no waiver by the
       Board of any provision hereof shall be deemed to have been made unless
       expressed in writing and signed by the Board.

CP at 87 (emphasis added).

       In April 2007, Bell Franklin transferred the commercial condominium units to

Winthrop and Allison Taylor. In July 2008, Bell Franklin transferred the residential


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No. 33024-9-III
Harwood v. First American Title Ins. Co.


condominium units on the top floors to defendant Bel Franklin Apartments. Bel Franklin

Apartments intended to benefit from low-income housing tax credits by the purchase and

rentals of the condominiums.

       According to plaintiff Joseph Harwood, after purchasing the upper condominiums,

Bel Franklin engaged in a series of fraudulent activities including the recording of

counterfeit covenant amendments all to the detriment of Joseph Harwood and his related

entities, C & H BFB LLC, Money Talks LLC, and Money Talks Trust. Harwood also

complains about defendant First American Title Insurance Company's participation in the

purported fraud.

                                      PROCEDURE

       On August 15, 2014, Joseph Harwood brought suit against Bel Franklin

Apartments for breach of the declarations and covenants, breach of implied covenant of

good faith and fair dealing, breach of an estoppel and stipulation agreement, and

consumer protection violations. Each claim relates to the parties' condominium interests

and dealings.

       On October 3, 2014, Bel Franklin Apartments moved the trial court to dismiss the

suit and to compel arbitration. Bel Franklin Apartments argued that section 12.14 of the

Declaration and Covenants requires Joseph Harwood and his entities to arbitrate all

claims. Harwood opposed the motion by contending: (1) Section 12.14 is not a valid

arbitration provision, (2) Section 12.14 does not cover disputes other than management

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No. 33024-9-III
Harwood v. First American Title Ins. Co.


disputes, (3) Section 18.1 permits a lawsuit under these circumstances, and (4) the

Washington Condominium Act, chapter 64.34 RCW governs this dispute, and the

arbitration clause may not impact the right to sue under the act. The trial court denied the

motion to compel arbitration.

       After filing this appeal, Bel Franklin Apartments, represented by legal counsel,

filed a brief asking us to reverse the trial court's denial of its motion to compel

arbitration. Joseph Harwood filed no responsive brief.

       On October 5, 2016, this court scheduled resolution of the appeal by a panel

without oral argument on December 5, 2016. On December 5, 2016, this court received a

letter from Fred Peck, Executive Director of Spokane Housing Ventures, managing

member of Bel Franklin Apartments, which letter requested the court to remove the

appeal from the court calendar. Peck wrote that Bel Franklin Apartments and Joseph

Harwood sought to reach a settlement agreement. The letter informed the court that Bel

Franklin Apartments, a limited liability company, was no longer represented by legal

counsel.

       On December 9, 2016, this court replied to Fred Peck's December 5 letter. The

court informed Peck that Bel Franklin Apartments' legal counsel had not filed a notice of

withdrawal and that the court considered only counsel as the spokesperson for the limited

liability company. The court also advised Peck that a licensed attorney must represent

any limited liability company engaged in litigation. The court postponed the hearing

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Harwood v. First American Title Ins. Co.


until February 1, 2017, for Peck and Bel Franklin Apartments' counsel to take any

needed steps. The court sent a copy of its response to all counsel of record, including Bel

Franklin Apartments' counsel.

      On February 1, 2017, this court received a CR 41 motion to dismiss with a

superior court caption. We have no confirmation that anyone filed a copy of the motion

with the superior court. Joseph Harwood signed the motion as trustee on behalf of

plaintiffs Money Talks Trust and as governor on behalf of Money Talks LLC. Cory

Colvin signed the motion to dismiss as governor of C & H BFB, LLC. Nevertheless,

counsel for both Money Talks entities and for C & H BFB, LLC, has never withdrawn

from representing the plaintiffs. We proceed to the merits.

                                LAW AND ANALYSIS

      Because Joseph Harwood failed to file a responsive brief, we must examine the

brief of Bel Franklin Apartments and the record to determine whether it has made a prima

facie showing that requires reversal. In re Marriage of Forsyth, 14 Wn. App. 909, 912,

546 P.2d 117 (1976); Aquarian Foundation v. KTVW, Inc., 11 Wn. App. 476,478, 523

P.2d 969 (1974). This court reviews de novo a trial court's decision denying a motion to

compel arbitration. Otis Housing Association, Inc. v. Ha, 165 Wn.2d 582, 586, 201 P.3d

309 (2009).




                                            7
No. 33024-9-111
Harwood v. First American Title Ins. Co.


       Usually the court determines whether an agreement to arbitrate covers a pending

controversy. Waqas Saleemi v. Doctor's Associates, Inc., 176 Wn.2d 368, 376, 292 P.3d

108 (2013). By statute,

             The court shall decide whether an agreement to arbitrate exists or a
       controversy is subject to an agreement to arbitrate.

RCW 7.04A.060(2). Nevertheless, the Bell Franklin covenants' arbitration clause

contains a unique provision that assigns the issue of arbitrability to the arbitrator. Under

Washington law, despite the statute and based in part on preemptive federal law, when

the contract unmistakably assigns the question of arbitrability to the arbitrator, the

arbitrator should decide if a controversy falls within the arbitration clause's scope.

Brown v. MHN Government Services, Inc., 178 Wn.2d 258, 264-65, 306 P.3d 948 (2013);

Gorden v. Lloyd Ward & Associates, PC, 180 Wn. App. 552, 563, 323 P.3d 1074 (2014);

Mendez v. Palm Harbor Homes, Inc., 111 Wn. App. 446, 455-56, 45 P.3d 594 (2002).

       The Washington Supreme Court's decision in Satomi Owners Association v.

Satomi, LLC, 167 Wn.2d 781, 225 P.3d 213 (2009) binds this appeal. The court enforced

a warranty provision that consigned to the arbitrators the question of whether an

arbitration clause blanketed the dispute between the parties. One of the claims asserted

by the plaintiffs fell under the Washington Condominium Act.

       Bel Franklin requests this court reverse and dismiss Harwood's claims. Bel

Franklin does not cite any case supporting dismissal of the claims as opposed to staying


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I
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I   No. 33024-9-111
    Harwood v. First American Title Ins. Co.

I
i   of litigation pending arbitration. Most Washington cases on a motion to compel

I   arbitration are silent on the treatment of the claims on remand. E.g. Verbeek Properties,
!
    LLC v. GreenCo Environmental, Inc., 159 Wn. App. 82, 93,246 P.3d 205 (2010); Canal

    Station North Condominium Association v. Ballard Leary Phase IL LP, 179 Wn. App.

    289, 302, 322 P.3d 1229 (2013). Since an arbitrator could rule that the controversy is not

    arbitrable, we direct the trial court to stay proceedings rather than dismiss the suit. We

    also note that defendant First American Title Insurance Company was not a party to the

    covenants. Thus, Harwood need not arbitrate claims against First American.

                                          CONCLUSION

           We reverse the trial court's order denying the motion to compel arbitration and

    remand for entry of an order staying Joseph Harwood's suit against Bel Franklin

    Apartments until completion of arbitration proceedings.

          A majority of the panel has determined this opinion will not be printed in the

    Washington Appellate Reports, but it will be filed for public record pursuant to RCW

    2.06.040.

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    WE CONCUR:



                                                  Lawrence-Berrey, J.

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