IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CANAL STATION NORTH

CONDOMINIUM ASSOCIATION, a

Washington nonprofit corporation,

Respondent,

BALLARD LEARY PHASE II, LP, a

Washington limited partnership; BRCP/CPI

PHASE II, LLC, a Washington limited

liability company; CONTINENTAL

PACIFIC INVESTMENTS REAL ESTATE

FUND 1, LP, a Washington limited

partnership; CPI FUND 1, LLC, a

Washington liability company;

CONTINENTAL PROPERTIES, LLC, a

Washington limited liability company;

CLAUDIO GUINCHER and JANE DOE

GUINCHER, individually and the marital

community comprised thereof; and DON

BOWZER and JANE DOE BOWZER,

individually and 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

DECLARANT AGENTS 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UNPUBLISHED OPINION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: December 23, 2013
No. 69500-2-1/2

Appelwick, J. — The Association sued Ballard Leary and several other

defendants for alleged construction defects. Before filing an answer, Ballard Leary filed

a CR 12(b)(6) motion to dismiss two of the Association's claims for lack of standing 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 of the 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 for further proceedings consistent with this opinion.

FACTS

This lawsuit arises from alleged construction defects in the Canal Station North

Condominium development at 5450 Leary Avenue in Seattle, Washington. The Canal

Station North Condominium Association (Association) filed its first amended complaint

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

quality under the Washington Condominium Act (WCA), chapter 64.34 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

disgorgement of fraudulent transfers.
No. 69500-2-1/3

The Association named several defendants: Ballard Leary Phase II LP (Ballard

Leary, the statutory declarant1); BRCP/CPI Phase II LLC (general partner of the

declarant); Continental Pacific Investments Real Estate Fund I LP (managing partner of

BRCP/CPI); CPI Fund I LLC (general partner of Continental Pacific); Continental

Properties LLC (manager of CPI Fund); Claudio Guincher (served on Association board

of directors) 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 in the 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 at the time of the recording

of an instrument pursuant to RCW 64.34.316 and who directly or through

one or more affiliates is materially involved in the construction, marketing,

or sale of units in the condominium created by the recording of the

instrument.

RCW 64.34.020(15).

2 All 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 conduct discovery. 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 of fraudulent transfers. Ballard

Leary claimed that the Association lacked standing to assert CPA violations and

negligent misrepresentation. Ballard Leary also argued that the 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 until the Association established liability and damages.

On August 3, 2012, the trial court denied Ballard Leary's CR 12(b)(6) motion.

Four days later, on August 7, 2012, Ballard Leary and the Continental defendants filed 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 (plaintiff and defendants)."

The Association moved to strike the arbitration demand, arguing that Ballard Leary

waived arbitration by demonstrating intent to litigate. The Association 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, rather than arbitrate them under RCW 64.55.100." The court

entered specific findings:

(1) defendants' CR 12(b)(6) motion sought to narrow specific

liability issues for trial while expressly leaving others for determination by

the trier of fact;
No. 69500-2-1/5

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

alternative motion for bifurcating the trial of liability 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 or preserve the arbitration forum;

(4) defendants' briefing references "jury confusion" as a basis for

bifurcating or dismissing specific claims; and

(5) granting the defendants' demand for arbitration, coming as it did

only after defendants lost a motion intended to shape the posture of the

litigation at trial, would tend to promote improper forum shopping.

Therefore, the trial court concluded "that defendants impliedly waived 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 or shown 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 against them to 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 of the order denying its arbitration demand and the order denying its
No. 69500-2-1/6

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

denying arbitration is appealable as a matter of right under RAP 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 by filing 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 by filing such demand with the court not less than thirty and not

more than ninety days after filing or service of the complaint, whichever is

later, the parties shall participate in a private arbitration hearing. The

declarant, the association, and the party unit owner do not have the right

to compel arbitration without giving timely notice in compliance with this

subsection. Unless otherwise agreed by the parties, the arbitration

hearing shall commence no more than fourteen months from the later of

the filing or service of the complaint.

This provision is part of the WCA and creates the arbitration right in dispute here.

I. Waiver of Arbitration

Ballard Leary contends that it could not waive arbitration as a matter of law,

because RCW 64.55.100 creates a mandatory, unwaivable right to arbitrate. In the

alternative, Ballard Leary argues that even if it could waive arbitration by its conduct, it

did not do so. Specifically, Ballard Leary contends that its CR 12(b)(6) motion to

dismiss was a procedural motion that did not go to the merits ofthe case. Ballard Leary

emphasizes that it demanded arbitration within 90 days of the service of the complaint
No. 69500-2-1/7

and within a reasonable time after the trial court denied its motion to dismiss. We first

address whether Ballard Leary waived 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 bears the burden of showing 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, or another defense to arbitrability. Verbeek Props., 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 by implication. 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

other intention but to forego a known right." |a\ Put another way, a party waives its right

to arbitrate if it elects to litigate instead of arbitrate. Otis Hous. Ass'n. Inc. v. Ha, 165

Wn.2d 582, 588, 201 P.3d 309 (2009).

The determination of whether a party waived arbitration by conduct depends on

the facts of the particular case 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. 165 Wn.2d at 588. OHA leased a hotel from John

and Min Ha with a purchase option. \± at 584-85. OHA announced its intent to
No. 69500-2-1/8

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

after OHA failed to pay rent for six months, the Has brought an unlawful detainer action.

Id In a show cause hearing, OHA argued that it timely exercised the purchase option.

Id. at 585-86. Only after the trial court disagreed, did OHA move to compel arbitration,

id. at 586. The Supreme Court held that OHA's conduct of arguing that it exercised 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 different forum." Id.

Similarly, in River House, the party demanding arbitration already attended an inperson status conference with the assigned judge, agreed to a trial schedule and date,

exchanged a trial witness list with the opposing party, participated in formal discovery,

and represented to the court that it was preparing for trial. 167 Wn. App. at 238-39.

This amounted to conduct inconsistent with any other intent but to forgo arbitration, jd.

at 239. Conversely, in Verbeek Properties, Verbeek's preliminary attempt to remove a

lien was not an election to litigate instead of arbitrate. 159 Wn. App. at 92. Verbeek's

motion to dismiss the lien as frivolous raised different issues than those it later sought to

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

must take some action to enforce that right within a reasonable time. 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 Weyerhaeuser Company (Weyerhaeuser), alleging shoddyworkmanship

8
No. 69500-2-1/9

in building their homes. Jd. at 453-54. Shortly after receiving notice of the lawsuit,

WRECO and Weyerhaeuser moved for summary judgment. 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 Weyerhaeuser then moved to compel arbitration, jd. at 455.

On appeal, we held that WRECO's and Weyerhaeuser's motion for summary judgment

did not waive their right to arbitrate. Id.

The Washington Supreme Court affirmed this court and held that WRECO'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 that they had no connection to the lawsuit, jd. The court distinguished 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 summary judgment 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 superior court denied their motion for summary judgment,

jd at 463.

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 the
No. 69500-2-1/10

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

claims. Without standing, the Association would 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.3d 406 (2011) ("[T]he claims of a plaintiff determined 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 neither does it waive arbitration here.

The question is then whether Ballard 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. In the 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, in furtherance of convenience or to avoid prejudice, or when separate trials

will be conducive to expedition and economy, may order a separate trial of any claim."

CR 42(b). In this analysis, Ballard Leary discussed jury 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 consistent with intent to waive arbitration. The arbitration

right available under the statute involved less than all the parties and less than all of the

10
No. 69500-2-1/11

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

proceedings would be compatible with the exercise of that arbitration right.3 Such a

motion does not necessarily suggest waiver.

Moreover, seeking to compel arbitration after losing on bifurcation is not the type

of forum shopping at issue in Otis Housing. Only after losing on the merits did OHA

seek to compel arbitration. Otis Housing, 165 Wn.2d at 586. In contrast, 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 alter ego liability or fraudulent transfers. This is analogous to Townsend.

Ballard Leary also did not evince other intent to litigate rather than arbitrate. For

instance, it did not file an answer or conduct any discovery. Ballard Leary also moved

to compel arbitration only four 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 by RCW 64.55.100. Otis Housing does not hold that a party must immediately

preserve its right to arbitrate. See also Verbeek Props., 159 Wn. App. at 90 (holding

that a party does not waive arbitration simply by failing to invoke it in the complaint or

answer). Rather, the rule is that a party must take some action to enforce its right to

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 been for Ballard Leary to preserve its right to arbitrate in its CR

3 Had Ballard Leary been clear with the court about its arbitration rights and

intent to invoke them, we have no doubt the trial court would have viewed the issue

differently.

11
No. 69500-2-1/12

12(b)(6) motion. However, we cannot say that Ballard Leary's conduct is consistent

with intent to 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 grant the demand for arbitration with the

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 the declarant.5 Ballard Leary argues this

constitutes a judicial admission that the defendants are in fact declarants, so the

Association should be equitably estopped from 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, 167 Wn.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) clearly contemplates waiver if the party seeking arbitration does not make

a timely demand as required by the statute.

5The partiesdo not dispute that Ballard Leary is the statutory declarant.

12
No. 69500-2-1/13

Ballard Leary points to several paragraphs in the Association's first amended

complaint to argue that the Association admitted the defendants are declarants. Two of

these paragraphs, by example, 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" of the 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 against the 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 of the 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 that they are themselves declarants. Ballard Leary cites no

authority for its proposition that alter egos or agents of the declarant must be joined 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) (failure to cite authority constitutes a concession that the argument lacks merit).

In fact, the WCA contemplates limited parties to the arbitration. RCW 64.55.100

specifies: "Ifthe declarant, an association, or a party unit owner demands an arbitration

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

13
No. 69500-2-1/14

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

means "all the parties to a lawsuit," not just the declarant, association, and unit owners.

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 and dealers6 can be liable for breach of implied warranties of

quality under RCW 64.34.445. Likewise, board members owe fiduciary duties to unit

owners under RCW 64.34.308(1).

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

provision of the WCA superfluous. 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

mechanism for joining subcontractors and suppliers in arbitration. If those parties to the

lawsuit were automatically joined under RCW 64.55.100, as Ballard Leary contends,

then RCW 64.55.150 would 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 or fifty percent or more

of the units in a condominium containing more than two units." RCW 64.34.020(14).

14
No. 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

gamut of RCW 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 in the arbitration may be joined 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 claim against the supplier to demand for that supplier to be joined in

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 manufacturer defendants in arbitration here,

the Association, which holds the claim, must make a demand to join 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.

15
No. 69500-2-1/16

Association has not done so. Because Ballard Leary does not currently have a claim

against the manufacturer defendants, it cannot join them in arbitration.8 Therefore, the

trial court did not err in concluding that these defendants were not proper parties to the

arbitration based on the status of the 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 summary judgment

motion from Townsend, and the law review article and legislative reports.

In her declaration, Smitrovich warranted, as an attorney for 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 file an answer before demanding arbitration. The Association is correct that

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 summary judgment motion.

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 subcontractor may be joined in the arbitration ifthe work performed

by the subcontractor is at issue in that proceeding.").

8 Ballard 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 against the manufacturer defendants.

16
No. 69500-2-1/17

party presents 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 about the WCA did not establish

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 in appendices).

We affirm in part, reverse in part, and remand for further proceedings consistent

with this opinion.

£.

WE CONCUR:

7^

beutJ\ _ C- <^z?(, J.

17