                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       November 15, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    MARK AVOLIO; JOHN BAKER;                                        No. 48016-6-II
    MAUREEN DeARMOND; and ANDREW
    MERKO,

                               Appellants,

         v.

    CEDARS GOLF, LLC,                                         UNPUBLISHED OPINION

                               Respondent.


        JOHANSON, J. — This case involves a dispute over the effect of restrictive covenants in a

residential neighborhood in Battle Ground. In 2014, Cedars Golf LLC (CG) applied to the City of

Battle Ground (the City) requesting approval to alter the plat and to subdivide two lots it owned in

the neighborhood. The appellants1 opposed CG’s efforts. After the hearing examiner ruled for

CG and the superior court affirmed, the appellants chose not to appeal further. Appellants later

sued for declaratory judgment and injunctive relief.2       The superior court granted summary



1
 We refer to the plaintiffs/appellants collectively as “appellants” for clarity because the names of
each individual are important at various stages in the analysis.
2
  Although the appellants sought both a declaratory judgment and injunctive relief, we frequently
refer to the second lawsuit as “the declaratory judgment action” for ease of reference.
No. 48016-6-II


judgment for CG and dismissed the declaratory judgment action. The appellants appeal from this

dismissal order. We hold that the doctrine of collateral estoppel bars the appellants’ declaratory

judgment action. We affirm the superior court’s summary judgment ruling.

                                             FACTS

                                         I. BACKGROUND

       Appellants Mark Avolio, John Baker, Maureen DeArmond, and Andy Merko are property

owners in a subdivision known as “The Cedars.” The Cedars has been developed and platted over

multiple “phases” since the early 1970s. CG owns two lots—lots “1” and “8” in The Cedars “Phase

II.”

       In 1972, developers platted “Phase I,” comprising 40 total lots. In March 1973, the

declaration of covenants, conditions, and restrictions (CCRs) was recorded. The Cedars Phase II

is an upscale 8-lot planned unit development in Battle Ground platted by recording in June 1980.

Avolio, DeArmond, and Merko also own lots of real property in Phase II, and Baker owns a lot in

Phase I of the development.

       In 1973, the CCRs encumbered only the Phase I properties because only Phase I was

developed. Among the restrictions in the CCRs was a provision that prohibited any further

subdivision of properties to which they applied.

       Although the CCRs applied to only Phase I lots, the declaration also contained provisions

that envisioned potential future extension of the CCRs to other phases of the development.

Specifically, the section titled “Annexation” provided that

       [a]dditional residential property and Common Area may be annexed to the
       Properties by a two-thirds (2/3) vote of the members. Provided, however, that
       [certain additional properties] may be annexed by the Declarant or assignee without
       the consent of the members within seven (7) years of the date of this instrument.

                                                   2
No. 48016-6-II



Clerk’s Papers (CP) at 217.

                       II. 2014 SUBDIVISION APPLICATION AND OPPOSITION

       In 2014, CG applied to alter The Cedars Phase II subdivision plat and to subdivide lots 1

and 8 of The Cedars Phase II. CG sought to subdivide their 2 lots, which had a “townhomes”

designation, into 13 buildable lots for single-family residences. The appellants believed that the

CCRs proscribed further subdivision of the lots, and they voiced their opposition to the application.

In part, the appellants believed that CG should not be permitted to subdivide its lots because the

“face of the plat of The Cedars Phase II incorporates by reference the [CCRs].” CP at 102. As

support for this contention, the appellants rely on a notation on the Phase II plat document that

provides,

                                         --Nature Trails--
                The Cedar Pacific Properties, Inc., in recording this plat of the “Cedars
       Phase-II” has designated certain areas of land as Nature Trails intended for use by
       the Homeowners in “The Cedars-Phase II” for recreation and other related
       activities. The designated areas are not dedicated for use by the general public but
       are dedicated for the common use and enjoyment of the Homeowners of “The
       Cedars-Phase II” as more fully provided for in the Declaration of Covenants,
       Conditions and Restrictions applicable to “The Cedars-Phase I” dated February 23,
       2973 [sic], and is incorporated in, and made a part of this plat.

CP at 68-69.

       Because the appellants believed that the CCRs precluded any further subdivision of CG’s

lots, they also believed that RCW 58.17.215, which governs the procedure required for subdivision

alterations, required that CG obtain the agreement of all parties subject to the CCRs to accomplish

the proposed alteration of the subdivision or portion thereof.




                                                 3
No. 48016-6-II


                                        A. PUBLIC HEARING

       A hearing examiner held a public hearing to consider CG’s application, at which each of

the appellants participated. An attorney represented Avolio, DeArmond, and Merko and sent

letters detailing their opposition to community development representatives before the hearing.

The attorney also appeared at the public hearing on behalf of his clients and urged the hearing

examiner to deny CG’s applications for the reasons mentioned above. Baker, DeArmond, and

Merko also submitted e-mails or letters expressly requesting to be parties of record and to be

notified of decisions and appeal rights relating to CG’s application.

                               B. HEARING EXAMINER FINAL ORDER

       After hearing testimony and considering accompanying exhibits, the hearing examiner

rendered a final decision approving CG’s application. The hearing examiner memorialized his

decision in detailed findings, including, relevant to this appeal:

               3. The examiner finds that the plat alteration application complies with
       RCW 58.17.215.
                       a. The applicant is requesting alteration of the plat to remove the
       “townhomes” designation on Lots 1 and 8. Lots 1 and 8 of Cedars Phase II are the
       only portion of the subdivision proposed to be altered. Therefore RCW 58.17.215
       only requires the signature of the majority of persons with an ownership interest in
       Lots 1 and 8 of Cedars Phase II. The further division of these platted lots is not a
       “plat alteration” subject to RCW 58.17.215.
                       b. The proposed subdivision will not result in violation of a
       covenant applicable to The Cedars Phase II subdivision. As discussed in Exhibit
       31, the CC&Rs for “The Cedars” dated February 23, 1973 were never adopted by
       The Cedars Phase II subdivision. There is no substantial evidence to the contrary.
                               i. The CC&Rs authorize “the Declarant,” the original
       developer of The Cedars, to annex certain additional properties without the consent
       of the members. . . . However such annexation must occur within seven years form
       [sic] the date of the CC&Rs. The CC&Rs were executed on March 2, 1973. The
       Cedars Phase II subdivision was platted June 6, 1980, more than seven years after
       the CC&Rs were signed. Therefore the Declarant had no authority to unilaterally
       include The Cedars Phase II subdivision in the CC&Rs.


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No. 48016-6-II


                              ii. The CC&Rs require a two-thirds majority vote to annex
       additional property into the CC&Rs. . . . There is no evidence that a vote to include
       The Cedars Phase II subdivision ever occurred.
                              iii. The Cedars Phase II subdivision plat did not adopt or
       incorporate by reference all of the CC&Rs applicable to The Cedars Phase I. The
       second plat note on the face of The Cedars Phase II subdivision plat is titled “Nature
       Trails.” The text of the plat note discusses the ownership and use of the nature
       trails within The Cedars Phase II subdivision site. By its terms, The Cedars Phase
       II subdivision plat note only incorporates those portions of The Cedars Phase I
       CC&Rs regulating the use and enjoyment of trails. There is no evidence that The
       Cedars Phase II subdivision plat was intended to adopt and incorporate all of The
       Cedars Phase I CC&Rs.

CP at 257.

                                        C. LUPA PETITION

       Avolio filed a petition under the Land Use Petition Act (LUPA), ch. 36.70C RCW, in the

superior court challenging the hearing examiner’s final order. Neither Baker, DeArmond, nor

Merko joined in this petition. In his petition, Avolio alleged that the City and the hearing examiner

erred by concluding that CG’s application met all requirements of a plat alteration under RCW

58.17.215. The superior court entered a judgment affirming the hearing examiner’s decision. The

superior court agreed that the hearing examiner correctly found that the CCRs were not applicable

to Phase II and therefore CG’s proposed subdivision would not constitute a violation of the same.

No party appealed the superior court’s ruling.

                 III. DECLARATORY JUDGMENT ACTION AND SUMMARY JUDGMENT

       Some months later, the original four parties sued in superior court. This time, the parties

sought a declaratory judgment that the CCRs prohibit “re-subdivision” of any lots in The Cedars,

including CG’s. CP at 6. They also asked the superior court to permanently enjoin CG and its

successors from further subdividing its property. In response, CG moved for summary judgment.

The appellants then moved for cross summary judgment.

                                                 5
No. 48016-6-II


       The superior court granted summary judgment in CG’s favor. The superior court dismissed

the complaint with prejudice, ruling that the doctrines of res judicata and collateral estoppel

precluded Avolio from bringing a subsequent action and that the remaining three parties were

collaterally estopped from doing so. The appellants appeal the dismissal order.

                                           ANALYSIS

                        I. STANDARD OF REVIEW – SUMMARY JUDGMENT

       We review summary judgment orders de novo and view the facts in the light most favorable

to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109

P.3d 805 (2005). Superior courts properly grant summary judgment where the pleadings and

affidavits show no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. CR 56(c).

                                    II. COLLATERAL ESTOPPEL

       The appellants argue on several grounds that the doctrine of collateral estoppel should not

preclude their subsequent declaratory judgment action. We reject their claims.3

             A. STANDARD OF REVIEW AND RULES OF LAW: COLLATERAL ESTOPPEL

       We review de novo whether collateral estoppel applies to bar relitigation of an issue.

Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004). The

doctrine of collateral estoppel prevents the endless relitigation of issues already litigated by the

parties and decided by a competent tribunal. Reninger v. Dep’t of Corr., 134 Wn.2d 437, 449, 951




3
 We do not reach CG’s jurisdictional argument because CG did not raise it before the trial court,
and because we affirm the trial court on the basis of collateral estoppel, we need not reach it.

                                                 6
No. 48016-6-II


P.2d 782 (1998). “Collateral estoppel promotes judicial economy and prevents inconvenience,

and even harassment, of parties.” Reninger, 134 Wn.2d at 449.

        Collateral estoppel, or issue preclusion, bars relitigation of the same issue in a subsequent

action when that issue has been litigated and necessarily and finally determined in the earlier

proceeding. Christensen, 152 Wn.2d at 306-07. The inquiry focuses on whether “the party against

whom the doctrine is asserted . . . had a full and fair opportunity to litigate the issue in the earlier

proceeding.” Christensen, 152 Wn.2d at 307. Collateral estoppel is distinguished from claim

preclusion “‘in that, instead of preventing a second assertion of the same claim or cause of action,

it prevents a second litigation of issues between the parties, even though a different claim or cause

of action is asserted.’” Christensen, 152 Wn.2d at 306 (internal quotation marks omitted) (quoting

Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983)).

        The party seeking the doctrine’s application must show that “(1) the issue decided in the

earlier proceeding was identical to the issue presented in the later proceeding; (2) the earlier

proceeding ended in a judgment on the merits; (3) the party against whom collateral estoppel is

asserted was a party to, or in privity with a party to, the earlier proceeding; and (4) application of

collateral estoppel does not work an injustice on the party against whom it is applied.”

Christensen, 152 Wn.2d at 307.

             B. COLLATERAL ESTOPPEL AS APPLIED TO ADMINISTRATIVE DECISIONS

        Initially, Avolio contends that his declaratory judgment action should not be precluded by

collateral estoppel because the hearing examiner did not make a “factual decision” while acting

within its “competence.” Br. of Appellant at 10. This requirement applies when determining

whether an administrative ruling should be given collateral estoppel effect. Reninger, 134 Wn.2d


                                                   7
No. 48016-6-II


at 450. The competence requirement does not apply to our determination of whether the superior

court’s decision estops Avolio from bringing the declaratory judgment action. And we hold that

the hearing examiner made a factual determination within its competence so that the hearing

examiner’s decision may preclude Baker, DeArmond, and Merko from joining in the declaratory

judgment action.

1.     COMPETENCE REQUIREMENT

       The requirement that a hearing examiner make a factual determination within its

competence before the hearing examiner’s ruling can collaterally estop a party is at issue when

courts are asked to determine whether to apply only collateral estoppel to the findings of an

administrative body. When faced with that question, our courts have employed three additional

criteria: (1) whether the agency acting within its competence made a factual decision, (2) agency

and court procedural differences, and (3) policy considerations. Reninger, 134 Wn.2d at 450

(quoting Stevedoring Servs. of Am., Inc. v. Eggert, 129 Wn.2d 17, 40, 914 P.2d 737 (1996)).

2.     AVOLIO

       In each case that the appellants cite to support their assertion that the “competence”

requirement should apply, the parties either opted not to appeal to the superior court following an

administrative body’s decision or sought to appeal the administrative decision but failed to follow

the necessary procedure. See Reninger, 134 Wn.2d at 440, 442 n.1 (parties attempted to appeal a

state Personnel Appeals Board determination but failed to file timely notice of appeal); Stevedoring

Servs. of Am., Inc., 129 Wn.2d at 21 (neither party appealed administrative law judge order);

Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987) (party initially

appealed Civil Service Commission decision to superior court, but voluntarily dismissed).


                                                 8
No. 48016-6-II


       These cases all stand for the proposition that these additional criteria are considered where

the immediately prior adjudication took place before only an administrative body. But relevant to

Avolio, the prior adjudication at issue was before the superior court, not the hearing examiner.

Avolio appealed the hearing examiner’s decision to the superior court, and the superior court

affirmed. The adjudication that occurred immediately prior to Avolio’s filing of the declaratory

judgment action was not before an administrative body but instead was before the superior court.

Accordingly, we conclude it is the superior court’s decision, and not the administrative decision,

that is relevant to determine whether collateral estoppel bars Avolio from bringing the declaratory

judgment action. Thus, we hold that whether the hearing examiner made a factual determination

while acting within its competence is immaterial to our holding relating to Avolio.

2.     BAKER, DEARMOND, AND MARKO

       The appellants raise the hearing examiner’s “competence” to decide the issues involved as

part of CG’s original subdivision application.4 The appellants appear to assert that the hearing

examiner had no authority to make certain findings regarding the CCRs because it “lacks

competence to resolve issues of law inherent in covenant interpretation and enforcement.” Br. of




4
  The appellants also contend that their declaratory judgment action should not be barred because
part of the hearing examiner’s decision was surplusage. They argue that because this surplusage
was not material to the controversy it does not become res judicata. See Luisi Truck Lines, Inc. v.
Wash. Utils. & Transp. Comm’n, 72 Wn.2d 887, 894, 435 P.2d 654 (1967). In particular, the
appellants rely on the hearing examiner’s statement that CG’s proposed subdivision was “not a
‘plat alteration’ subject to RCW 58.17.215.” CP at 54. The appellants contend that if further
subdivision is not a plat alteration under the statute, the hearing examiner did not need to further
interpret the CCRs. Although the appellants are correct that there is such a rule, the hearing
examiner clearly made a scrivener’s error. Elsewhere in its findings, the hearing examiner stated
specifically that the plat alteration application complies with RCW 58.17.215.

                                                 9
No. 48016-6-II


Appellant at 11. Therefore, according to the appellants, the hearing examiner’s decision should

have no preclusive effect. We reject the appellants’ contentions.

       The authority to grant or deny an application for subdivision alteration includes a

determination of whether the CCRs applied to the property.

       RCW 58.17.215 provides,

       When any person is interested in the alteration of any subdivision or the altering of
       any portion thereof, except as provided in RCW 58.17.040(6), that person shall
       submit an application to request the alteration to the legislative authority of the city,
       town, or county where the subdivision is located. The application shall contain the
       signatures of the majority of those persons having an ownership interest of lots,
       tracts, parcels, sites, or divisions in the subject subdivision or portion to be altered.
       If the subdivision is subject to restrictive covenants which were filed at the time of
       the approval of the subdivision, and the application for alteration would result in
       the violation of a covenant, the application shall contain an agreement signed by all
       parties subject to the covenants providing that the parties agree to terminate or alter
       the relevant covenants to accomplish the purpose of the alteration of the subdivision
       or portion thereof.

       Importantly, RCW 58.17.217 states that any hearing required by RCW 58.17.215 may be

administered by a hearing examiner as provided in RCW 58.17.330.5 At the local level, the Battle

Ground municipal code (BMC) sets forth its own guidelines regarding what subjects and what

kinds of matters a hearing examiner may decide. These include all “Type III” land use actions that

are site specific. BMC 17.200.040. Subdivision applications and plat alterations are considered

“Type III” applications. BMC 17.200.035. In the procedure it describes for the alteration of

approved subdivisions, the BMC specifies that where a public hearing is requested or required for




5
  RCW 58.17.330 simply explains the procedures required of the hearing examiner system,
including that the decision be in writing and that there be findings and conclusions based on the
record to support the decision.

                                                  10
No. 48016-6-II


an alteration proposal, the application shall be referred to the hearing examiner for consideration.

BMC 16.135.020.

       Having reviewed this authority, both state and local law may confer the authority to decide

matters of this nature to hearing examiners in some instances. This is one such instance. The

argument that the hearing examiner here did not have the authority to determine matters

specifically related to the application of the CCRs is unavailing for at least two reasons.

       First, to the extent that the appellants aver that the hearing examiner here could not

“interpret or enforce” CCRs, this argument fails because the hearing examiner did neither. Br. of

Appellant at 30. Instead, he found that the CCRs did not apply to Phase II and, therefore, the

procedural requirements of RCW 58.17.215 had been satisfied. Second, even if the hearing

examiner’s determination under RCW 58.17.215 could be considered “interpretation” of a

covenant, it would be illogical to conclude that a hearing examiner may deny or approve

applications for subdivision alterations under RCW 58.17.215 without considering the very

submission criteria that the statute requires. We hold that the hearing examiner was within its

authority to consider whether the CCRs applied as part of its decision to approve CG’s application.

       We reject the appellants’ arguments that the hearing examiner lacked competence to decide

the issues in appellants’ subdivision application and hold that the hearing examiner’s decision may

preclude Baker, DeArmond, and Marko from bringing the declaratory judgment action.

Accordingly, we turn to the application of collateral estoppel’s four factors to Avolio, Baker,

DeArmond, and Marko.




                                                 11
No. 48016-6-II


                           C. COLLATERAL ESTOPPEL’S FOUR FACTORS

       First, collateral estoppel applies only if the issue decided in the earlier proceedings is

identical to the issue presented in the later proceeding and “necessarily . . . determined.”

Christensen, 152 Wn.2d at 307. Here, the issue before the superior court in the LUPA petition and

before the hearing examiner was whether CG should be prohibited from further subdividing its

lots by operation of the CCRs. In their subsequent declaratory judgment action, the appellants

again asked the superior court to declare that the CCRs preclude “re-subdivid[ing]” CG’s lots and

permanently enjoin them from doing so. CP at 6. The issue was again whether the CCRs impeded

CG’s proposed subdivision. The issue was the same in the LUPA action and before the hearing

examiner as in the declaratory judgment action.

       Further, appellants argue that the superior court apparently made superfluous findings such

that the issue was not “necessarily . . . determined.” Br. of Appellant at 9 (quoting Christensen,

152 Wn.2d at 307). This argument is unavailing. RCW 58.17.215 requires that any person seeking

an alteration of any subdivision shall submit an application along with the signatures of the

majority of owners of property subject to the proposed alteration. And if the subdivision is subject

to restrictive covenants, then the application shall contain an agreement signed by all parties

subject to the covenants that the parties agree to terminate or alter the relevant covenants. RCW

58.17.215. The superior court agreed that the hearing examiner correctly found that the CCRs

were not applicable to Phase II and therefore CG’s proposed subdivision would not constitute a

violation of the same. The superior court made findings to satisfy RCW 58.17.215’s requirements,

and thus the superior court’s findings were necessary to its decision.




                                                12
No. 48016-6-II


          Second, the prior proceeding must end with a judgment on the merits. Christensen, 152

Wn.2d at 307. There can be little doubt this factor is established under the circumstances. The

hearing examiner rendered a final decision, which neither Baker, DeArmond, nor Marko appealed.

And the superior court affirmed the hearing examiner’s decision in a final order, which no party

appealed.

          Third, the parties against whom collateral estoppel is asserted must have been parties to, or

in privity with a party to, the earlier proceeding. Christensen, 152 Wn.2d at 307. Here, Avolio

was a party to the appeal, and each appellant was also a party to the administrative proceeding

before the hearing examiner. Avolio, Merko, and DeArmond hired an attorney to represent them

before the hearing examiner. Through their attorney, they submitted letters outlining their position

before the hearing took place, and the attorney testified on their behalf. Baker, DeArmond, and

Merko submitted e-mails or letters expressly requesting to be parties of record and to be notified

of decisions and appeal rights relating to CG’s application. Avolio then filed the LUPA petition

in the superior court. The third factor is established.

          Fourth, application of collateral estoppel may not work an injustice on a party against

whom it is applied. Christensen, 152 Wn.2d at 307. The party must have had a full and fair

opportunity to litigate an issue before collateral estoppel will apply. Christensen, 152 Wn.2d at

307. The injustice component is regularly concerned with procedural, not substantive, irregularity.

Christensen, 152 Wn.2d at 309. Injustice can arise when the disparity of relief is so great that a

party would be unlikely to have vigorously litigated the crucial issues in the first forum such that

it would be unfair to preclude relitigation of the issues in a second forum. Reninger, 134 Wn.2d

at 453.


                                                   13
No. 48016-6-II


       Here, the appellants had a full and fair opportunity to litigate the issue before the hearing

examiner and on appeal to the superior court and, importantly, they were represented by counsel.

Procedurally, collateral estoppel here does not work an injustice. Appellants claim that collateral

estoppel works an injustice based on “disparity of relief.” Br. of Appellant at 24. However, there

is no such disparity of relief despite the appellants’ suggestion otherwise. The relief would have

been identical had the appellants succeeded before the hearing examiner, in the superior court

LUPA petition, or in the superior court declaratory judgment action. The relief sought was a

prohibition on CG’s ability to subdivide their properties in one of two ways. Either the hearing

examiner would have declined to approve CG’s application (or the superior court would have

reversed and vacated the approval) in the first proceeding or the superior court would have

enjoined CG from doing so in the later proceeding. The appellants did not request damages or any

form of relief otherwise.

       For the foregoing reasons, we hold that the doctrine of collateral estoppel bars the

appellants from bringing a subsequent claim to relitigate issues previously determined. Therefore,

the superior court properly granted summary judgment.

                               D. PUBLIC POLICY CONSIDERATIONS

       Avolio contends that public policy considerations should also compel this court to hold

that collateral estoppel does not apply on the facts of this case. Again, we reject this argument.

       The appellants’ argument in this respect is twofold. First, they again raise the notion of

“disparity in relief.” Br. of Appellant at 25. However, any relief would have been identical. The

appellants have made no showing that any disparity of requested relief should preclude the

application of collateral estoppel to their subsequent complaint.


                                                14
No. 48016-6-II


       Second, they argue that policy considerations should prohibit the application of collateral

estoppel because if collateral estoppel applies, parties who oppose local land use applications

would be required to forgo certain rights and forced to make an unfair choice of remedies.

       This second argument is equally unpersuasive—that would not be the effect of our holding

even if we agree with CG. We do not hold that participating in a public hearing before a hearing

examiner means that no future lawsuit could be filed to challenge either that decision itself or any

subsequent alteration of the status quo as it pertains to a land use decision. Rather, we hold that a

party who either declines to challenge a hearing examiner’s final order or who challenges a hearing

examiner’s decision by way of a LUPA petition and then declines to exhaust its right to appeal

beyond the superior court may not then bring an entirely separate suit seeking a second

determination of the same rights and remedies at issue during the earlier proceeding. This entirely

follows the recognized policies underlying collateral estoppel.

       The appellants appear to assert that it is unfair to require a party who wishes to challenge

a land use decision to do so by seeking an administrative remedy only, rather than to have the

choice to proceed by filing other causes of action in superior court. But such an argument must

also fail because LUPA grants superior courts exclusive jurisdiction for challenges to land use

decisions in Washington. RCW 36.70C.030(1)(a)(ii). We decline to hold that public policy

mandates that collateral estoppel not be applied to this case.6



6
  Each party also raises issues pertaining to their respective motions for summary judgment and
the merits of the underlying claims. For instance, the appellants contend that the CCRs are
unambiguous in that they clearly apply to all property within The Cedars. We decline to address
these issues. First, we need not address these matters because we hold that the superior court
properly dismissed this action. Second, the superior court made no ruling regarding these issues.
Third, the record is insufficiently developed to address the merits even if we felt compelled to do
so.
                                                 15
No. 48016-6-II


                                      III. ATTORNEY FEES

       CG argues that it is entitled to attorney fees on appeal under both RCW 4.84.370(1) and

RAP 18.9. We disagree.

       RCW 4.84.370(1) provides,

       [R]easonable attorneys’ fees and costs shall be awarded to the prevailing party or
       substantially prevailing party on appeal before the court of appeals or the supreme
       court of a decision by a county, city, or town to issue, condition, or deny a
       development permit involving a site-specific rezone, zoning, plat, conditional use,
       variance, shoreline permit, building permit, site plan, or similar land use approval
       or decision.

       RAP 18.9(a) authorizes an appellate court, on its own initiative or on motion of a party, to

order a party or counsel who files a frivolous appeal “to pay terms or compensatory damages to

any other party who has been harmed by the delay or the failure to comply or to pay sanctions to

the court.” Such compensatory damages may include attorney fees. Kinney v. Cook, 150 Wn.

App. 187, 195, 208 P.3d 1 (2009) (quoting Yurtis v. Phipps, 143 Wn. App. 680, 696, 181 P.3d 849

(2008)).

       We decline to award attorney fees under either of the cited provisions. First, we decline to

award fees under RCW 4.84.370(1) because this is not an appeal from a land use decision. And

although the appellants’ arguments are unpersuasive, their appeal is not one that presents no

debatable issues upon which reasonable minds might differ or that is so devoid of merit that there

was no possibility of reversal. Kinney, 150 Wn. App. at 195 (quoting Lutz Tile, Inc. v. Krech, 136

Wn. App. 899, 906, 151 P.3d 219 (2007)). We decline to award fees on the basis of RAP 18.9.




                                               16
No. 48016-6-II


        We affirm the superior court’s summary judgment ruling.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    JOHANSON, J.
 We concur:



 BJORGEN, C.J.




 MAXA, J.




                                               17
