dismissed and since that time i've tried to find a way to tie together all the various and disparate elements of this case in a way that is succinct and comprehensive and balances breath with that and i don't think i really dial that in  i wrote the reply brief so i would ask the court if there's any aspect of this case that finds under developed i would invited to it and its course to review the reply brief as much if not more so than the opening brief the two issues that i'd like to argue on the merits the first is whether the twenty five year expiration closets contained in the governing plants for the let me on and scenic estates subdivision and let me out and see me because these bylaws is enforceable and then the second  is whether or not there is a genuine issue of material fact on the fiduciary duty issues such that my client should have a day in court just to narrow the issues with regard to the first aspect the real estate  questions the issues not whether or not lie sick has to cease to exist or whether or not it should be disbanded the issue is whether or not it can compel people to be members of its organization both parties also agree that compulsory memberships if they if they aren't forcible must arise out of the governing plat so there's no equitable servitude arguments or no way to equitably rewrite the platts and then finally both of the parties agree that the expiration clauses should apply at least apply to six of the eight covenants the restriction and whether or not that should matter there are three in my mind your rebuttable responses to that the first of all it's a logically inconsistent position to take because the plants they all out lots tracks parcels of land should be subject to the fall or strip since for a period used for the purposes of interpretive governing plant determining the language that's in the governing plant so if the question is whether or not it's a restriction which is the only difference between the two parties i don't see how that even informs that question to begin with but it's  difficult to say first of all that that doctrine ends with that language the collective interests of the of the of the community it doesn't define what a community is and does and find what a collective interest is so it's difficult to say that a homeowner's association that exists only for the purpose of providing a utility for a minority of the property owners is in the collective interest of all the property owners especially when the majority has to pay for something that only the minority gets to use and a majority will never be able to use because they've been told the homeowners association has been told you can't add on additional water connections until we've approved an overhaul the system in the systems never been overhauled even though d s h has told them to for several decades now  place it can be it can be passed over it it can actually become a public utility which is what happened over an ocean shores and i don't want to opine on that too much because it's not the record but that's what happened in ocean shores which by the way was founded by the exact same people who founded sick and then in addition to that the i mean since the thing is the provisos water it can still provide water in fact is required by washington state to continue providing water to everybody that's in the service area and people who are already connected to the water system are decidedly within the service area so the idea that they could suddenly disconnect people's water because they can't compel memberships anymore is is a canard and it and it is not doesn't hold up in a washington state law so then finally it doesn't matter whether or not it's a restriction according to the defense say some but not all definition dictionary definitions because  it's a do it's restriction under the platters own definition that they said all louts traction parcels of land should be subject to follow instructions and then they listen eight restrictions that they thought were restrictions they also said the same thing in the  more explicitly said the following eight restrictions it says restrictions but beneath it has a heading in that it includes the same language as in covenant number eight let me just jump in with sure i can a lot of what motivated the district court's reasoning here was just an inability to make sense why the drafters would have included this twenty five year since it does kind of i can't think of a good explanation for why that would be rational but apparently you think that it makes perfect sense so if you can help with that i can  mbrance so they put the twenty five year expiration clause on there and as the court can see when you look at the first two lines in the record by the way i'm not i'm not talking out of school here we have added that in the record the first two divisions are clearly unsophisticated compared to the following divisions when loco became a part of the organization so the reason why the district court's decision was erroneous it's because it used considerations that were all teary or to the contract for the purpose of their design for the purposes of interpret in the contract in order to centrally supplant the language of the contract and the washington supreme court not admissible for the purpose of adding to modifying or contradicting the terms of a written contract it is the duty of the court to declare the meaning of what is written not what is intended to be written and they said that again and whole us vs gargle were they first applied that doctrine to pla interpretation and then in two thousand and four by communications for seattle times company they started to register their concern that this is being used and they said are holding a bird might have been misunderstood as it implicates the mission of parole evidence we impute an intention corresponding to the reasonable meaning of the words used but the most instructive case of all and if there's one case i was stranded on a desert island with a single case would be wilkinson versus chihuahua because it was it was rendered in two thousand and fourteen summarizes all the former decisions it's obviously recent and it's comprehensive and justice stevens there said we have a do not consider evidence that would very modifier contradict the written word or shown intention independent of the instrument explicit language that's within the contract in favor of altered considerations for instance the subsequent condo parties excuse me my mouth is really dry so if the court were to reverse that decision it could do so knowing that it's reversal squarely within the parameters of washington state law and that it's merely enforcing the facial terms of the contre contract but if it were to affirm that decision it kind of continues that aberration in the federal cour have to abide by that decision while a state courts abide by a different decision and that's not going to be reconciled until another ninth circuit panel comes along and says we were wrong or the washer state sort of the supreme court explicitly calls that out also  time afterwards why wasn't the court in time to rely on the subsequent actions of the parties who otherwise would have been in a position to say hey wait a minute what's going on right right absolutely it's an important question but the answer to it is several fold first of all it's not a consideration the washington state recognizes but more importantly in one nine hundred ninety they called a general meeting and they told the public that they had been collecting dues for so long that their right to collect dues and now become perpetual that's in the record we've saw what happened in two thousand and twelve when somebody who lost a campaign to notify the property owners about this expiration immediately launched their own  told them that they had filed court documents that extended the right to collect dues in perpetuity nobody denies that's just flatly untrue they said that they want a court case on the strength of those documents totally untrue so under the the adverse domination rule when a when a board member is telling property owners taking a position and telling property owners one one position they don't have to have noticed that the board members are wrong how to mean what you say it meant then all of those people would have risen up that kids ago and said we're not paying any more right in the district court says because nobody did that maybe that should some why don't what that provision was really supposed to me right into the deliberately misled is my point and i mean if you're a lay a property owner and the homeowners association who by the way it's a matter of record that they've spent through six hundred forty three thousand dollars on this litigation do you want to take on your homeowners association who's insured and who's telling you that they filed court documents and extend this past you some esoteric legal document they say that this doc is buying and by the way we've gotten people in court before with this document you do you really want to take them on or you want to pay your seven hundred dollars a year i mean i would i would imagine that that's the that's the that's the general response but in addition to that they have been telling people at those at those annual meetings that they go right to collectors of perpetual now i'm sorry look like i was saying you begrudge them for spending money defending this lawsuit no but but i'm just trying to explain illustrate why it would be such a burden for any particular homeowner to try to take on this problem back in one thousand nine hundred any other time you question th what's your best argument this case there's a there's a thousand of them the life i see what's the best one the plain an ordinary meaning of the words that were used in the contract and the case law comprehensive detailing of the duty that's owned by a homeowners homeowners association to its constituents and the board to its constituents and there they said that the it merely has to be reasonable it has in fact the it could be reviewed for whether or not it's reasonable they said good faith was not even enough the defendants say the rands response for the proposition that a court should not enter jacked its decision making for that of the board but that's exactly what it did they omitted the cost of this failing water system from the reserve report in violation of our c w sixty four thirty eight that zero seven zero this is their ten k this is their their report is their disclosure to property owners to let them know whether or not they're going to be on the hook for massive assessments in the future and they didn't even include this multimillion dollar failing capital asset in that report to notify these property owners that they're going to wind up having to pay for that so the proper years i'm owners are being misled about that also took money other reserve funds in violation of our c sixty four dow thirty eight zero sum which ironically is the same statute they used to justify taking it out that they didn't follow anything conditions you have to pay back for one thing you have to notify everybody by first class  mail and then has to be for only only for surprise costs and then they devise kind of a self serving fee rouge that was going to charge everybody retroactively for the things that they didn't pay they didn't use that utilities that they didn't use and then pay themselves for the utilities that they did use and that they did pay for at the time whether the you know the group that you represent ever try to get elected to the homeowners association when they were board managed to get a controlling interest  discussing all of these these failings with the other residents and trying to sort of administratively deal with it and ever try to do that yes that your honor they actually were board members of the time t this started and they were ousted from the board by this by this small group of full time property owners that has kind of a disproportionate influence on the board because most of the properties are there's no buildings on them and they're completely undeveloped their own by people all across the united states homeowners association board get elected by the members by the members to show up at those meetings but this is not this is not like a southern california country club this is this is a bunch of hodgepodge of trailers in the woods and pieces of land in the woods and on  rocky slopes and most of these properties are on in fact we've submitted evidence of this most of the properties owned by people all across the united states and so they're not they would have to show up at a board meeting to actually you know vote the policies that want and in fact most these policies are proposed by the board and then people have to vote them down to be honest so it's just impracticable for right that if they felt overly flick that they could show up and vote i suppose that's true but it w put economically it would have to make economic sense to do that i mean i personally wouldn't go there to try to overturn a vote like that even if i was being fleeced for money improperly and i think that's why there is a role for the court in this situation because it's just of the majority of people that are showing up and often these are done through special votes so they call a special vote a very short notice it's just the people who i mean nobody's going to buy a plane ticket to go to a special vote so it's just the people that are there that are essentially doing something about that but most importantly the they they gave these people a false vote they gave them a hobson's choice between two fear regimes that are identical so they were totally self serving fusions if a director can game of vote so that it results in the director's desired outcome no matter what the people vote then it's not a real vote anyway so i mean that would i think be the most important answer to that can i just if i may i'd like to try and address several of the questions that your honour's have raised judge nelson you initially asked if the argument that is being made here by the plaintiffs would frustrate the homeowners interest and under washington law we don't vote on determining what that is but what that goes to when you're talking about a development where there are plats and there interrelationships and obligations owed between the community members and homeowners association is the idea that all of the homeowners buy in with that expectation of what they're buying into and every single one of the owners in this community including every single one of the plaintiffs has this information in their deeds the information that is provided in the plats which requires them to be subject to governance by the bylaws and the articles of incorporation of the homeowners association mr albert responded to you well it could just become a public utility that's how we could solve this problem the bylaws specifically prohibit that  bylaws of this community say it cannot become a public utility judge wofford you asked about what is the reason for the twenty five year restriction and i disagree with mr albert that's a relevant question because the job of the court here is to figure out what the intent was of the developers what was intended by this language that was used many many years ago no one is alive to tell us we have their instruments only to make that judgment call and i think that what you see commonly in restrictions in developments like this is this idea that you know we don't know about some of these restrictions and how they're going to be applied what the norm is going to be in ten or twenty or thirty years so you co see you know the distance from the street the requirements for what roof material is supposed to be made from whether an individual or a married couple can constitutionally be restricted to homeowners to living in the community all of those kinds of decisions about the use of property are typically made by democratic processes within these homeowners associations so that i think appears to be from the language they used in the comprehensive review of all of the words that they use the intent here because we now just the problem is that the same word restrictions is used in both places and you have to parse the meaning of the two in a way that's not natural at all to arrive at the position you're taking  agree it you do you do have to do that and the way you get to that your honor is by following the washington law which dictates that you look at the document in its completion in its complete completeness i will note that there's been no discussion here today of divisions  they do not include that language at all so there is no argument that there is a word restriction that anything is restricted whether it's a restriction or some other type of a covenant in those first two the first two plots i mean the same people drafted both yes you're on the this development was created by a partnership and we have the partnership agreement it is in the record that the court has and the partnership agreement explains that every single one of these plots is not made in the name of the individuals who signed but it's made in the name of the partnership and the dominant partner was moshe smith and he signed all but the first of the platts he also signed the articles of incorporation he was on the initial board of directors of the homeowners association he signed the bylaws and then after this community all of these plots are recorded then we have this existant homeowners association which follows through on the promises made in the platts life sick then after tenth plat deeds the common areas to the homeowners association and there we have from then on the governance by this homeowners association of the community and you asked your honor about one thousand nine hundred ninety is this magical number and i'd like to just correct that not correcting you a book or wrecked in the plaintiff's that it is a series of numbers that are it's around that time well it's around that time over a period of four years so what we have then is staggering five the lawyer for the homeowners association analyzed this and concluded that the restrictions that were referred to did not did not i mean the existence rights of the homeowners association or the obligations of membership and that was provided to the members so that's s c r one seventeen that's in one thousand nine hundred five as the issue is arising is do we have a nine hundred ninety issue here and so we have the lawyer saying no we don't nobody on the board is a lawyer they hire a lawyer to provide that advice so i think that that was made pretty clear and that was publicly available to document that was produced by the plaintiffs in this lawsuit  saying it's really this tiny tiny bit of minority of the property owners who even get any benefit from that because most people don't have a water hook up and can't get one that the first part is right that second part is not right there is no evidence in the record before the court that anyone has ever been denied a right at the request to connect to the water system so what you have here is many lots that are not developed folks have purchased them they come to visit it's a beautiful community and a lovely spot but they have yet to purchase a home there or they just build a home there those individuals don't need water when they need water they can make up location and there is literally nothing in the record before this court that suggests that anyone has ever been denied that so it is that is the way that this community has structured itself you're not going to have to pay a catch up eventually down the road for twenty years of missed fees miss dues that everybody else has been paying for the upkeep of a water system which is what it is it is of a size that does not change irrespective of the number of homes that it serves so the right in the plants which they claim expires for the ones that come three through ten it says in the platts you have a right to connect the water system and that right remains today for anybody who wishes it to be the case and when they make that application and the information that is provided to the court indicates the number of permits that were available as of twenty eleven i think frankly that's the last piece of evidence that was provided by the plaintiffs regarding that issue ok ok with the homeowner members given a choice to vote against the imposition of a repayment fee all users shouldn't have been given that choice your honor they were all of these decisions that our challenge here by the plaintiffs were presented to and the record explains this to the members in their annual general meetings many of the plaintiffs were part of that process many of the plaintiffs supported the views as is demonstrated in the record that they now challenge and two of them were board members and those individuals advocated for policies which they now contend are unlawful but to answer your question your honor these are decisions that have been presented to the community year after year particularly the issue of how much is being paid by dues members to support the water system which is an asset that belongs to the homeowners association so they're not being paid the folks who actually receive water service they pay additionally they pay for the amount of the number of gallons of water that they use but everybody pays for this asset which belongs to the community which is a selling factor when each of them goes to sell their homes that they have a right to simply request and lock into the water system that belongs to the community i wanted to correct mr albert mentioned that the decision was made by the board about reserve funds and sending money back to people that issue was not appeal so there are a there were a slew of claims a seventy page complaint in this lawsuit and one of the claims had to do with folks who had bound lots where they this is a steep rocky mountain and sometimes it's hard to have sufficient land with one lot to create a drain field to support a house so sometimes folks would have two lots they would combine them and build a house and and so the one of the issues that is not appealed had to do with that that that decision that was made democratically by the homeowners association so this issue of reserve funds is not before the court i wanted to judge henderson you asked the question about well can't you just get yoursel democratically elected if you disagree with the positions that are being taken by the majority of the homeowners who show up and form a quorum and vote and the answer is that they did they did and the lead plaintiff the one who has been  explained to us is the source of the funding for this lawsuit he was removed from the board of directors and the record before the court demonstrates that most of the people advocating for his removal are the folks sitting next to him they are the plaintiffs in this lawsuit so he was democratically elected and then he was democratically removed and that's now been many many years ago and so the issues continue to arise and this is an issue of democracy these are people who can make decisions pursuant to their bylaws and their articles of incorporation regarding how they want to govern themselves i want to briefly touch on the issue of fiduciaries duty and this is this is a claim that's made against individuals these are homeowners who live on this island some of them don't live on the island they have a home there that they visit occasionally but they have served as members of the board of directors and they are being sued in their individual fiduciary duty under our homeowners association act the law in washington state allows it creates kind of a superstructure that's a default all of these rules and regulations unless the homeowners association decides to do it differently and there's a lot of flexibility of what you can do differently that that satisfies the law so this standard of fiduciary duty the obligations that are owed by board members that set forth in the homeowners association homeowners association act by its terms can be changed and it has been changed here and so in the bylaws and this is that s t r six to five it provides directors shall not individually liable except for a director's own bad faith dishonesty or fraud so that's the standard and that's a pretty common standard when you're talking about volunteers serving on the board of directors so that's a standard here that just talk briefly about the platts as i said you know we didn't really hear much about divisions one and two and so it's pretty clear and i would assume conceded at this point by the plaintiffs that divisions one in two lack the language the hook that they're trying to to destroy the homeowner's association rights and duties for divisions three through ten it lacks that language all together the intent of the members of the  partnership that created these plots we look to the language that they use and we have several types of documents to look at we have of course the nine plats which were signed all but the first one by mr moshe smith on behalf of the partnership we have the articles of incorporation and the articles of incorporation are not extraneous evidence they are not context they are part of the points they are incorporated by specific reference knowing as the partners did that the first several divisions there was no homeowner's association yet but it was clearly anticipated knowing that there were no articles yet but requiring and putting every owner on notice that they were buying into a community that would be governed democratically pursuant to the articles of incorporation we also have the bylaws and the bylaws to are incorporated by specific reference into the platts those bylaws are actually inactive right before the very last plat and again those were signed by mr moshe smith and they provide the democratic superstructure for how members of this community will make decisions how they will be elected to the board how the dues process will work how the majority will make district decisions about the dues and then lastly the last set of documents we have are the deeds these are the deeds through which the partnership which own and the common areas that were excluded the reserves as it's called in in the platts how they deeded these properties to the homeowners association and to the degree there was any dispute any question about this holdings inc that was mentioned initially and contemplated to be the name of the h away and which never came to fruition it's confirmed by the fact that once they're done with their plats the partnership turns around and bequeath deeds all these properties these these reserve areas including the lake and the water system components to let me island cynical states community club and this happens after the final plat is is recorded washington's rules of construction govern us here and they govern the district court below the court is directed to construe this instrument inconsiderate in its entirety and by entirety that means the articles in the bylaws because those are incorporated by reference it's to give words the ordinary usual and popular meaning unless the entirety of the agreement clearly demonstrates a contrary intent and i think that goes to your question your honor about well what do we do with this kind of strange structure of a sentence here about restrictions and we go to the language that's actually used comprehensively and we consider that with the bylaws and the articles which were incorporated in and while the first initial divisions we didn't know what they were going to say because they hadn't yet create been created by the last five everybody knew what the articles of incorporation said because they had been created and so the language doesn't change the restrictions language doesn't change continues which demonstrates that there's no conflict from the partnership's perspective but tween that and the provisions that they are setting forth now in the in the articles which are available and uniquely in washington law for a planned community as as distinct from the insurance contract case that you were stressing earlier today or any other run of the mill contract the court is directed to place special emphasis on arriving at an interpretation of the platts that protects the homeowners collective interest this is a community which is represented in only very small measure by the the plaintiffs who are before this court by the appellants and lastly the court is allowed to use extrinsic evidence of intent to consider the language that's actually used and that matters because the word restrictions is not actually used in the visions one in two so for the court as was the case for the district court to rule that those restrictions in that those first division somehow expired it would have to be adding language that is not part of those initial plats can i can i jump in and ask yes please or unrelated question in some ways  and maybe this is in the record but i just don't know if you all exhausted efforts to try to mediate resolve this case through mediation has that been tried and failed and you're just we're beyond that point now because this does strike me as a case that this is not you know or court here is not the ideal form to get something like this resolved so i'm just asking you ask your opponent the same thing because i've been trying and it's really on that point we have to have some of the best mediators in the country who are available for free to help resolve these sorts of intractable disputes but i don't we wouldn't want to waste their time if you guys know we were well yes i think the answer is yes we're beyond that and that frankly your honor the process for resolving these disputes is not in a court that's the problem here that's the problem these folks are on the losing end of democratic votes they don't like decisions that are being made in the open by their fellow fellow community members under the articles in the and that happens that's life right i mean that's the way it goes when you're part of a democratic process and this is something the judge last night repeatedly pointed out in his rulings below that this mechanism of coming to federal court with the federal rico lawsuit let me remind were here before you and not in the still pending superior court action up in washington county because these plaintiffs filed a federal racketeering lawsuit so no your honor i don't think at this point that is the appropriate mechanism for resolving that this is an issue of law this is an issue of what was intended based on the language that these the this partnership used in creating these communities so so i think respectfully we're beyond that fine that's why we have courts help you all try to resolve these kind of dispute is fully when you can't work it out amongst yourselves and we will you'll get a decision from us if if need be yes thank you your honor ok so i wanted to just briefly as i see my time is running out unless there are any other questions quickly talk about the restrictions language and that is that the restrictions are followed by a list of eight paragraphs and the first six are clearly restrictions you can't do this on your land you can't do this on your land you can't do this on your land  but then we get to paragraph seven and eight and those aren't restrictions at all so for example paragraph seven says that each lot is intitled to hook up that's a right and some of the members of this community haven't taken advantage of that right because they don't have a house or in the case for example of mr or to go he's decided to put out buckets in his lawn and collect rainwater which he's entitled to do so that's a right that's an affirmative right it's not it i s it doesn't restrict anything or anybody from doing anything else paragraph eight then has these four intertwined provisions which are also found in divisions one in two which create this interwoven relationship among each of the homeowners in all of the divisions and are not restrictions that prohibit them from doing anything thank you counsel thank you your honors here from counts for the plaintiffs in rebuttal you have about two and a half minutes and i soon you're are you in agreement with your opponent that we're beyond any point that mediate you know not at all your honor in fact the plaintiffs originally when we provided testimony this the fact they went to the board and they said that they would be bound by a vote of the community of the board would just put this to a vote of the community and they refused to do so we have given witness testimony to that effect by a member who was on the board who was no friend of the plaintiffs at the time so that's not true there's been no intent to mediate this case by the way with regard to divisions wanted to visit wanted to don't contemplate a relationship with lice at all they con relationship with a holding company there is no there's no evidence whatsoever that anybody ever anticipated there had to be there or that there was going to be a homeowner's association the two people who signed all of divisions one through five the mcmillan's were gone from the project before a homeowner association was contemplated before there was any evidence of a homeowner so see the association was going to be contemplated and so there's no no reason under washington state law to believe that that was going to be their intent at the time so regardless of whether or washington state canons of construction and plan interpretation so i would ask the court that before i would normally would nasa's when it was my client's who filed this in federal court but there's no more federal claims i don't know exactly what the original lawyer pad plan for the rico claim but long lasting solution perhaps so i would i would invite a mediation but that hasn't happened yet and the votes of the community that propose it never happen as as has been very clear from the record this is soviet style obstruction of a of a falling apart infrastructure and there's never been an attempt to notify anybody about any of this ok thank you feel so shit the arguments this morning the case to start he will be submitted