IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON
CANAL STATION NORTH CONDOMINIUM ASSOCIATION, a Washington nonprofitcorporation, Respondent,

BALLARD LEARY PHASE II, LP, a Washington limited partnership; BRCP/CPI PHASE II, LLC, a Washington limited liabilitycompany; CONTINENTAL PACIFIC INVESTMENTS REAL ESTATE FUND 1, LP, a Washington limited partnership; CPI FUND 1, LLC, a Washington liabilitycompany; CONTINENTAL PROPERTIES, LLC, a Washington limited liabilitycompany; CLAUDIO GUINCHER and JANE DOE GUINCHER, individually and the marital 

### community comprisedthereof; and DON BOWZER and JANE DOE BOWZER, 

### individuallyand the marital community compromised thereof, Appellants, DOE AFFILIATES 1-50; DOE PRINCIPALS 1-10; DOE DECLARANT BOARD MEMBERS 1-10; DOE CONTRACTORS 1-20; DOE DECLARANTAGENTS 1-10; DOE TRANSFEREES 1-50; UPONOR, INC., an 

### Illinois corporation; DAHL BROTHERS CANADA, LTD, a Canadian corporation; BRASS-CRAFT MANUFACTRUING COMPANY, a Michigan corporation; DOE MANUFACTURING COMPANIES 1-20; 

### doe distributing companies 1-20, Defendants. No. 69500-2-I DIVISION ONE UNPUBLISHED OPINION

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FILED: December23, 2013No. 69500-2-1/2 

### Appelwick, J. — The Association sued Ballard Leary and several other defendants for alleged construction defects. Beforefiling an answer, Ballard Leary filed a CR 12(b)(6) motion to dismiss two ofthe Association's claims for lack ofstanding and two other claims as premature. When the trial court denied the motion, Ballard Leary moved to compel arbitration pursuant to RCW 64.55.100 of the Washington Condominium Act. The trial court issued an order striking Ballard Leary's arbitration demand, finding that Ballard Leary waived arbitration. We hold that the motion under CR 12(b)(6) did not constitute a waiver ofthe right to arbitrate and that arbitration was 

### timely demanded as to the claims against the statutory declarants. Arbitration was 

### properly denied as to the remaining claims and parties to the lawsuit. We affirm in part,
reverse in part, and remand forfurtherproceedings consistentwith this opinion.
FACTS 

### This lawsuit arises from alleged construction defects in the Canal Station North Condominium development at 5450 Leary Avenue inSeattle, Washington. The Canal Station North Condominium Association (Association) filed its first amended complaint 

### on May 15, 2012, alleging several causes of action: (1) breach ofimplied warranty of 

### quality under the WashingtonCondominiumAct(WCA), chapter64.34 RCW; (2) breach of implied warranty of habitability; (3) breach of express warranty and contract;(4) negligent misrepresentations; (5) breach of fiduciary duty; (6) violation of the 

### Washington Consumer Protection Act (CPA), chapter 19.86 RCW; (7) and disgorgementoffraudulenttransfers.No. 69500-2-1/3


### The Association named several defendants: Ballard LearyPhase II LP(Ballard 

### Leary, the statutory declarant1); BRCP/CPI Phase II LLC (general partner of the declarant); Continental PacificInvestments Real Estate Fund ILP (managing partner of BRCP/CPI); CPI Fund I LLC (general partner of Continental Pacific); Continental Properties LLC (managerof CPI Fund); Claudio Guincher(served on Association board 

### ofdirectors) and Jane Doe Guincher; Don Bowzer (same) and Jane Doe Bowzer;2 as well as other unidentified alter egos, unknown affiliates, and asset transferees of the declarant. The Association referred to BRCP/CPI, Continental Pacific Investments, CPI 

### Fund, and Continental Properties collectively as "Continental." The Association also alleged that three out-of-state corporations—Uponor Inc., Dahl Brothers Canada LTD, and Masco Corp.—"designed, manufactured, supplied, and/or distributed defective component parts of plumbing systems installed" at Canal Station. The Association referred to these three corporations collectively as "manufacturer defendants."

1"Declarant" means 

### (a) Any person who executes as declarant a declaration as defined in subsection (17) of this section; or (b) Any person who reserves any special declarant right inthe declaration; or 

### (c) Any person who exercises special declarant rights or to whom special declarant rights are transferred; or 

### (d) Any person who is the owner of a fee interest in the real property which is subjected to the declaration atthe time ofthe recording of an instrument pursuantto RCW 64.34.316 and who directly or through one or more affiliates is materially involved inthe construction, marketing, or sale of units in the condominium created by the recording of the instrument. RCW64.34.020(15). 

### 2All the aforementioned defendants are appellants here. We refer to them collectively as "Ballard Leary."No. 69500-2-1/4

Ballard Leary filed a notice of appearance, but did not file an answer. Nor did 

### any party conductdiscovery. Instead, on July 6, 2012 Ballard Leary filed a CR 12(b)(6) 

### motion to dismiss four of the Association's claims: violation of the CPA, negligent misrepresentation, alter ego liability, and disgorgement offraudulent transfers. Ballard Leary claimed that the Association lacked standing to assert CPA violations and negligent misrepresentation. Ballard Leary also argued thatthe Association's alter ego liability and fraudulent transfer claims were premature and should be dismissed without 

### prejudice unless and until the Association prevailed on its claim for damages. In the alternative, Ballard Leary requested that the trial court bifurcate the case and stay the premature issues untiltheAssociation established liabilityand damages. On August 3, 2012, the trial court denied Ballard Leary's CR 12(b)(6) motion. 

### Fourdays later, on August7, 2012, Ballard Leary and the Continental defendantsfiled a demand for arbitration pursuant to RCW 64.55.100. The demand encompassed "any and all claims related to all of the above-captioned parties (plaintiffand defendants)." The Association moved to strike the arbitration demand, arguing that Ballard Leary waived arbitration by demonstrating intentto litigate. TheAssociation also asserted that certain defendants were not entitled to demand arbitration. On August 21, 2012, the trial court issued an order denying Ballard Leary's arbitration demand. The court found that the defendants "evidenced a clear intent to litigate the claims herein, ratherthan arbitrate them under RCW 64.55.100." The court entered specificfindings: (1) defendants' CR 12(b)(6) motion sought to narrow specific 

### liability issues for trial while expressly leaving others for determination by the trier offact;No. 69500-2-1/5 

### (2) defendants' motion sought to stage the litigation in an 

### alternativemotion forbifurcating the trial ofliability and damages from the trial of alter ego and Uniform Fraudulent Transfers Act[, chapter 19.40 RCW,] claims; (3) prior to losing those motions, defendants made no effort to invoke orpreservethe arbitrationforum; 

### (4) defendants' briefing references "juryconfusion" as a basis for bifurcating ordismissing specificclaims; and 

### (5)granting the defendants' demand for arbitration, coming as it did only after defendants lost a motion intended to shape the posture ofthe 

### litigation at trial, wouldtendto promote improperforum shopping. 

### Therefore, the trial court concluded "thatdefendants impliedlywaived arbitration by their conduct, the timing of their motions practice and demand, and their express representations to the court." The trial court further found that: [Defendants CPI Fund 1, LP; Continental Properties LLC; Claudio Guincher, Jane Doe Guincher; Don Bowzer and Jane Doe Bowzer are not alleged or shown to be declarants having a right to invoke arbitration under RCW 64.55.100, and are not alleged orshown to be subcontractors or material suppliers who may be brought into a statutory arbitration proceeding under RCW 64.55.150. Accordingly, it is not proper to refer cases againstthemto arbitration. The court added, "Other manufacturer defendants likewise do not fall within the statutory reference to 'parties.'" Ballard Leary moved for reconsideration. In the alternative, Ballard Leary requested that the trial court certify the issue for immediate appeal. The trial court denied both requests. Ballard Leary subsequently filed a notice for discretionary review with this court, requesting review ofthe orderdenying its arbitration demand and the orderdenying itsNo. 69500-2-1/6

motion for reconsideration. Our commissioner concluded that the trial court's decision 

### denying arbitration is appealable as a matterof rightunderRAP 2.2(a)(3). DISCUSSION 

### Ballard Leary argues that the trial court erred in denying its arbitration demand 

### and finding that it waived the right to arbitrate under RCW 64.55.100 byfiling a CR 12(b)(6) motion to dismiss. Ballard Leary also contends that the trial court erred in 

### ruling that not all the defendants are subject to arbitration under RCW 64.55.100 and RCW 64.55.150. The Association moved to strike the appendix from Ballard Leary's reply brief, to which Ballard Leary objected. RCW 64.55.100(1) provides: 

### If the declarant, an association, or a party unit owner demands an 

### arbitration byfiling such demand with the court not less than thirty and not 

### more than ninety days afterfiling or service of the complaint, whichever is later, the parties shall participate in a private arbitration hearing. The declarant, the association, and the party unitowner do not have the right 

### to compel arbitration without giving timely notice in compliancewith this subsection. Unless otherwise agreed by the parties, the arbitration 

### hearing shall commence nomore thanfourteen months from the later of thefiling orservice ofthe complaint. 

### Thisprovisionis part of theWCAandcreatesthearbitration rightindispute here.
I. Waiver ofArbitration 

### Ballard Leary contends that it could not waive arbitration as a matter oflaw, because RCW 64.55.100 creates a mandatory, unwaivable right to arbitrate. In the 

### alternative, Ballard Leary argues that evenifitcould waive arbitration by its conduct, it did not do so. Specifically, Ballard Leary contends that its CR 12(b)(6) motion to 

### dismisswas aproceduralmotionthatdid notgo to themerits ofthe case. BallardLeary 

### emphasizes thatitdemanded arbitration within 90 days oftheservice ofthecomplaintNo. 69500-2-1/7

and within a reasonable time after the trial court denied its motion to dismiss. We first address whetherBallard Learywaived arbitration by its conduct. We review denial of a motion to compel arbitration de novo. Verbeek Props., LLC v. GreenCo Envtl.. Inc.. 159 Wn. App. 82, 86, 246 P.3d 205 (2010). The party opposing arbitration bearsthe burden ofshowing the arbitration clause is inapplicable or unenforceable. Id. at 86-87. Washington has a strong public policy favoring arbitration. Heights at Issaquah Ridge Owners Ass'n v. Burton Landscape Grp., Inc., 148 Wn. App. 

### 400, 405, 200 P.3d 254 (2009). We must indulge every presumption in favor of arbitration, whether the issue is construction of an arbitration clause or allegation of 

### waiver, delay, oranotherdefenseto arbitrability. VerbeekProps., 159 Wn. App. at 87. 

### Waiver is the voluntary and intentional relinquishment of a known right. Id. 

### Waiver of an arbitration clause may be accomplished expressly or byimplication. Lake Wash. Sch. Dist. No. 414 v. Mobile Modules Nw.. Inc.. 28 Wn. App. 59, 62, 621 P.2d 

### 791 (1980). However, waiver "cannot be found absent conduct inconsistent with any otherintention but to forego a knownright." |a\ Putanotherway, a party waives its right to arbitrate if itelects to litigate instead of arbitrate. Otis Hous. Ass'n. Inc. v. Ha, 165 Wn.2d 582, 588, 201 P.3d 309 (2009). 

### The determination ofwhether a party waived arbitration by conduct depends on 

### the facts of the particularcase and is not susceptible to bright line rules. River House Dev. Inc. v. Intearus Architecture, PS. 167 Wn. App. 221, 237, 272 P.3d 289 (2012). In 

### Otis Housing, the Washington Supreme Court held that Otis Housing Association (OHA) 

### waived arbitration by its conduct. 165Wn.2d at 588. OHA leased a hotel from John and Min Ha with a purchase option. \± at 584-85. OHA announced its intent toNo. 69500-2-1/8

exercise the option, but no sale closed before the option expired. Ig\ at 585. Then, 

### afterOHA failed to pay rentfor six months, the Has broughtan unlawfuldetaineraction. Id In a show cause hearing, OHA argued that ittimely exercised the purchase option. Id. at 585-86. Only afterthe trial court disagreed, did OHA move to compel arbitration, id. at 586. The Supreme Court held that OHA's conduct ofarguing that itexercised the option as a defense to the unlawful detainer action was completely inconsistent with its intent to arbitrate, jd. at 588. "Having lost that issue, [OHA] may not later seek to relitigate the same issue in a differentforum." Id. 

### Similarly, in RiverHouse, the party demanding arbitration already attended an inperson status conference withthe assignedjudge, agreed to a trial schedule and date, 

### exchanged a trialwitness list with the opposing party, participated in formal discovery, and represented to the court that itwas preparing for trial. 167 Wn. App. at 238-39. This amounted to conduct inconsistentwithany other intent but to forgo arbitration, jd. at 239. Conversely, inVerbeek Properties, Verbeek's preliminary attemptto remove a 

### lienwas not an election to litigateinstead of arbitrate. 159 Wn. App. at 92. Verbeek's motion to dismiss the lien as frivolous raised different issues than those itlatersoughtto 

### arbitrate. \± at 91-92. Inessence, a party to a lawsuit who claims the right to arbitrate 

### must take some action to enforcethatrightwithin a reasonabletime. Otis Housing, 165
Wn.2d at 588. 

### The Washington Supreme Court recently applied this rule in Townsend v. Quadrant Corp., 173 Wn.2d 451, 463, 268 P.3d 917 (2012). There, homeowners sued 

### Quadrant, as well as its parent companies Weyerhaeuser Real Estate Company 

### (WRECO) and WeyerhaeuserCompany (Weyerhaeuser), alleging shoddyworkmanship

8No. 69500-2-1/9 

### in building their homes. Jd. at 453-54. Shortly after receiving notice of the lawsuit, WRECO and Weyerhaeuser moved for summaryjudgment. Id, at 454. They argued that, aside from the parent-subsidiary relationship with Quadrant, neither of them had any connection to the plaintiffs or their houses. JdL The superior court denied the motion. Id. WRECO and Weyerhaeuserthen moved to compel arbitration, jd. at 455. On appeal, we held thatWRECO's and Weyerhaeuser's motion for summaryjudgment did notwaive theirrightto arbitrate. Id. The Washington Supreme Court affirmed this court and held thatWRECO's and Weyerhaeuser's conduct did not evince intent to waive arbitration, jd. at 463. They 

### moved to compel arbitration promptly after the superior court denied their motion for summary judgment. Id. And, their summary judgment motion dealt only with their 

### assertions thatthey had no connectionto the lawsuit, jd. The courtdistinguished these facts from Naches Valley Sch. Dist. No. JT3 v. Cruzen, 54 Wn. App. 388, 395-96, 775 

### P.2d 960 (1989). Townsend, 173 Wn.2d at 462. In that case, teachers waived arbitration when they prevailed on a substantive summaryjudgment motion disputing 

### the meaning of their collective bargaining agreement. ]d at 462-63. The Townsend 

### court emphasized that, in contrast, WRECO and Weyerhaeuser moved to compel arbitration promptly after the superiorcourt denied their motion for summaryjudgment, jd at463. 

### In its CR 12(b)(6) motion, Ballard Leary asked the trial court to (1) dismiss the Association's CPA and negligent misrepresentation claims for lack of standing and (2) dismiss without prejudice the alter ego liability and fraudulent transfer claims as 

### premature(or, alternatively, bifurcate and stay those claims). Townsend controls on theNo. 69500-2-1/10 

### standing issue. Ballard Leary disputed whether the Association could bring certain 

### claims. Without standing, the Associationwould not be the proper party to bring suit on those claims nor to arbitrate them. See Ullerv v. Fulleton. 162 Wn. App. 596, 604, 256 

### P.3d406 (2011) ("[T]he claims of a plaintiffdetermined to lack standing are not his or hers to assert and cannot be resolved in whole or in part on the merits."). This is comparable to WRECO's and Weyerhaeuser's argument that they were not proper parties to the lawsuit. Townsend. 173 Wn.2d at 462-63. Such conduct did not waive arbitration there and neitherdoes itwaive arbitration here. 

### The question isthen whetherBallard Leary waived arbitration by asking the court to dismiss or stay claims as premature. Ballard Leary argued in its CR 12(b)(6) motion that the alter ego and fraudulent transfer issues were secondary to the Association's claim for damages and should be dismissed without prejudice until the Association actually prevailed on its claim for damages. Inthe alternative, Ballard Leary asked the 

### trial court to exercise its authority under CR 42(b) to bifurcate the case and stay the premature issues. Ballard Leary analyzed the CR 42(b) factors for bifurcating a case: "The court, infurtherance ofconvenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial ofany claim." CR 42(b). Inthis analysis, Ballard Leary discussedjury confusion and trial expediency

as a basis to bifurcate. We must indulge every presumption in favor of arbitration. Discussing jury confusion and trial expediency is consistent with making a CR 42(b) argument to bifurcate, and not necessarily consistentwith intentto waive arbitration. The arbitration right available underthe statute involved less than allthe parties and less than all ofthe

10No. 69500-2-1/11

claims. A motion to dismiss other parties or claims, stay those claims, or bifurcate the 

### proceedings would be compatible with theexercise of thatarbitration right.3 Such a motion does not necessarily suggestwaiver. 

### Moreover, seeking to compel arbitration after losing on bifurcation is notthe type 

### of forum shopping at issue in Otis Housing. Only after losing on the merits did OHA seekto compel arbitration. Otis Housing, 165 Wn.2d at 586. Incontrast, Ballard Leary 

### lost on a preliminary procedural motion and then immediately sought to compel arbitration. Requesting dismissal without prejudice or bifurcation does not go to the merits of alterego liabilityorfraudulenttransfers. This isanalogoustoTownsend. 

### Ballard Leary also did not evince otherintent to litigate rather than arbitrate. For instance, it did notfile an answer or conduct any discovery. Ballard Leary also moved 

### to compelarbitration onlyfour days after the trial court denied the CR 12(b)(6) motion. There is no dispute that this was within 90 days from service of the complaint, as 

### required byRCW64.55.100. Otis Housing does nothold that a partymustimmediately 

### preserve itsright to arbitrate. See alsoVerbeek Props., 159Wn. App. at 90 (holding that a party does notwaive arbitration simply byfailing to invoke itin the complaintor answer). Rather, the rule is that a party must take some action to enforceits rightto arbitrate within a reasonable time. Otis Housing, 165 Wn.2d at 588. Ballard Leary did 

### so here. Aside from discussing jury confusion and trial expediency as a basis to 

### bifurcate, Ballard Leary evinced no other intent to litigate rather than arbitrate. Best 

### practice would have beenfor Ballard Leary topreserve its rightto arbitrate in its CR 3 Had Ballard Leary been clearwith the court about its arbitration rights and intent to invoke them, we have no doubt the trial court would have viewed the issue differently.

11No. 69500-2-1/12 12(b)(6) motion. However, we cannot say that Ballard Leary's conduct is consistent with intentto forego its right to arbitrate. We hold that Ballard Leary did not waive its right to arbitrate under RCW 64.55.100 by filing the CR 12(b)(6) motion to dismiss before seeking to compel arbitration. The trial court erred in refusing to grantthe demand for arbitration withthe statutory declarants. We reverse. Because Ballard Leary did not waive arbitration by its conduct, we need not decide whether the WCA creates an unwaivable right to arbitrate.4

II. Proper Declarants Under RCW 64.55.100 

### Ballard Leary argues that the trial court erred when it ruled that not all the defendants are subject to arbitration, because they are not statutory declarants under 

### RCW 64.55.100. Specifically, the trial court found that defendants CPI Fund, Continental Properties, Guincher, and Bowzer, are not declarants under RCW 64.55.100 and are therefore not proper parties to arbitration. Ballard Leary contends this was error, because the Association alleged in its complaint that these defendants 

### are agents, affiliates, and/or alter egos of thedeclarant.5 Ballard Leary argues this constitutes a judicial admission that the defendants are in fact declarants, so the Association should be equitablyestoppedfrom arguing to the contrary.

4 Because we do not reach this issue, we need not consider Ballard Leary's 

### argument regarding Satomi Owners Ass'n v. Satomi, LLC, 167Wn.2d 781, 805, 225 P.3d 213 (2009). Therefore, we do not consider the Association's motion to strike 

### Ballard Leary's Satomi argument. We find it worth noting, however, that RCW 64.55.100(1)clearlycontemplates waiverifthe party seeking arbitration does not make a timely demand as required by the statute. 

### 5The partiesdo not dispute thatBallard Learyis thestatutorydeclarant.

12No. 69500-2-1/13 

### Ballard Leary points to several paragraphs in the Association's first amended complaintto argue thatthe Association admitted the defendants are declarants. Two of these paragraphs, byexample, state: 

### 2.14 Pursuant to RCW 64.34.020(1) and/or RCW 19.40.011(1), all or some of Declarant, Continental, DOE AFFILIATES 1-50 and DOE 

### PRINCIPALS 1-10 are alter egos of one another and/or qualify as "affiliates" ofthe Declarant, and/or pursuant to RCW 19.40.011(7) qualify as "insiders" of Declarant and one another. As alter egos of Declarant, 

### these defendants are each responsible for all tort, contract, and warranty liabilities alleged herein againstthe Declarant.

2.16 DOE DECLARANT BOARD MEMBERS 1-10 are currently unidentified persons who were appointed by the Declarant and/or its alter egos and owners to serve, as agents of Declarant during the period of declarant control ofthe Association. Based on this language, the Association does not allege that CPI Fund, Continental Properties, Guincher, and Bowzer are declarants. Rather, it alleges that they are affiliates, alter egos, and/or agents of the declarant, Ballard Leary. This does not, as Ballard Leary claims, mean thatthey are themselves declarants. Ballard Leary cites no authority for its proposition that alter egos or agents ofthe declarant must bejoined in arbitration. Nor does Ballard Leary cite any authority supporting its theory that alter egos or agents must be treated the same as the defendant. Thus, we need not 

### consider it. RAP 10.3(a)(6); State v. McNeair, 88 Wn. App. 331, 340, 944 P.2d 1099 (1997) (failureto cite authority constitutes a concession thatthe argument lacks merit). 

### Infact, the WCA contemplates limitedparties to the arbitration. RCW 64.55.100 specifies: "Ifthe declarant, an association, or a party unit ownerdemands an arbitration 

### by filing such demand with the court. . . the parties shall participate in a private

13No. 69500-2-1/14 

### arbitration hearing." (Emphasis added.) Ballard Leary contends that "the parties"

means "allthe parties to a lawsuit," notjustthe declarant, association, and unitowners. However, the statute does not so state. See In re Pers. Restraint of Bovan, 157 Wn. App. 588, 599, 238 P.3d 528 (2010) ("We will not read into the statute words that are not there."). The "parties" most plausibly relates back to the three parties specified in the statute: the declarant, the association, and unit owners. RCW 64.55.100(1). Reading RCW 64.55.100 as a limited arbitration right is supported by the fact that not every claim arising under the WCA can be enforced against only a declarant. For 

### instance, both declarants anddealers6 can beliablefor breach ofimplied warranties of quality under RCW 64.34.445. Likewise, board members owe fiduciary duties to unit

owners under RCW64.34.308(1). 

### Furthermore, reading "the parties" as "all parties to a lawsuit" renders another 

### provision of the WCAsuperfluous. Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002) ("Statutes must be construed so that all the language is given effect and no portion is rendered meaningless or superfluous."). RCW 64.55.150 provides a 

### mechanismfor joiningsubcontractors and suppliers in arbitration. Ifthose parties to the 

### lawsuit were automatically joined under RCW 64.55.100, as Ballard Leary contends, then RCW 64.55.150would be meaningless. 

### CPI Fund, Continental Properties, Guincher, and Bowzer are not declarants. 

### Because they are not declarants, they are not proper parties to the arbitration under RCW 64.55.100. We hold that the trial court did not err in refusing to refer them to 

### 6"'Dealer'means a person who, together with such person's affiliates, owns or has a right to acquire either six or more units in a condominium orfifty percentor more of the units in a condominiumcontaining more than two units." RCW64.34.020(14).

14No. 69500-2-1/15

arbitration. And, notably, the trial court did not exclude BRCP/CPI (general partner of Ballard Leary) and Continental Pacific Investments (managing partner of BRCP/CPI) from arbitration.

III. Manufacturer Defendants Similarly, Ballard Leary argues that the Association's claims against the manufacturer defendants—Masco, Dahl Brothers, and Uponor—should also be submitted to arbitration. The Association alleged that these three manufacturer 

### defendants "designed, manufactured, supplied, and/or distributed" defective plumbing 

### products. (Emphasis added.) Ballard Leary contends that this brings them within the gamutofRCW 64.55.150. RCW 64.55.150 provides: 

### Upon the demand of a party to an arbitration demanded under RCW 64.55.100, any subcontractor or supplier against whom such party has a 

### legal claim and whose work or performance on the building in question becomes an issue inthe arbitration may bejoined in and become a party to the arbitration. 

### Based on the Association's complaint, the manufacturer defendants are suppliers whose work on the building is at issue. However, RCW 64.55.150 requires the party 

### asserting a legal claimagainst the supplier to demand for that supplier to be joinedin arbitration: "Upon the demand of a party to an arbitration demanded under RCW 

### 64.55.100, any subcontractor or supplier against whom such party has a legal claim . ..." (Emphasis added.) To join the manufacturerdefendants in arbitration here, 

### theAssociation, which holds the claim, must make a demand tojoin them.7 The
7 See also Mark F. O'Donnell & David E. Chawes, Improving the Construction and Litigation Resolution Process: The 2005 Amendments to the Washington Condominium Act Are a Win-Win for Homeowners and Developers, 29 Seattle U. L.

15No. 69500-2-1/16


### Association has not done so. Because Ballard Learydoes not currently have a claim 

### against the manufacturerdefendants, itcannotjoin themin arbitration.8 Therefore, the trial court did not err inconcluding thatthese defendants were not properparties to the arbitration based on the status ofthe pleadings. IV. Association's Motion to Strike The Association moved to strike material from the appendix in Ballard Leary's reply brief, specifically: the declaration of Jennifer Smitrovich, the summaryjudgment motion from Townsend, and the law review article and legislative reports. Inherdeclaration, Smitrovich warranted, as an attorneyfor Ballard Leary and the Continental defendants, that they did not request any discovery, answer any discover, request any depositions, conduct any expert site investigations, file any dispositive motions, or filean answerbefore demanding arbitration. TheAssociation is correctthat 

### this improperly supplements the record without our approval under RAP 9.10 and 9.11. And, regardless, the record already supports Smitrovich's statements. Similarly, the Townsend summary judgment motion provides additional facts outside the two published opinions in that case. We grant the Association's motion to strike Smitrovich's declaration and the Townsend summaryjudgmentmotion. 

### We deny the Association's motion to strike the legislative reports and law review 

### article. Legislative reports may be attached in an appendix under RAP 10.4(c): "If a Rev. 515, 533 (2006) ("Upon the demand of a party who has a legal claim against a 

### subcontractor, such subcontractormay be joined in the arbitration ifthe work performed bythe subcontractoris at issue inthatproceeding."). 

### 8Ballard Leary asserted at oral argument that it has counterclaims against the manufacturer defendants. However, nothing in the record shows that Ballard Leary 

### actually brought counterclaims againstthe manufacturerdefendants.

16No. 69500-2-1/17 

### partypresents an issue which requires study of a statute ... the party should type the material portions of the text out verbatim or include them by copy in the text or in an appendix to the brief." Likewise, the law review article aboutthe WCA did notestablish 

### specific facts of this case, but rather "'legislative facts'" that we may consider when determining the constitutionality or interpretation of a statute. See State ex rel. T.B. v. 

### CPC Fairfax Hosp.. 129 Wn.2d 439, 453-54, 918 P.2d 497 (1996) (refusing to strike scholarly articles attached inappendices). 

### We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

£. WE CONCUR: 

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