L~D CDUSTOFAPPEALS DIV I STATE OF WASfHN&TON 

### ZOI9FEB—5 AHIO:37

IN THE COURTOFAPPEALS OFTHE STATE OFWASHINGTON KILO6 OWNERS ASSOCIATION, a Washington nonprofitcorporation; and 

### ) No. 77365-8-I KILO SIX, LLC, aWashington limited liabilitycompany, 

### ) DIVISION ONE 

### ) Appellants, UNPUBLISHED OPINION V. EVERETT HANGAR LLC, a Washington limited liabilitycompany, 

### )

Respondent. 

### ) FILED: February

### 5, 2019 LEACH, J.

— Kilo 6 OwnersAssociation (the Association) and Kilo Six LLC 

### (collectively Kilo) appealthetrial court’s decision that Kilo Six’scertification oflot 13 as “substantially complete” underthe covenants, conditions, and restrictions (the CC&Rs) governing the Association is null and void. Kilo contends that judicial estoppel bars Everett Hangar’s challenge to this certification. Kilo also claimsthatthetrial court’s interpretation of“substantiallycomplete” conflictswith theexpresstermsofthe CC&Rsandwiththe parties’ courseofperformance. First, because Everett Hangar and Kilo both adopted positions in their earlier litigation inconsistent with their current positions, the trial court did not abuse its discretion by declining to apply the equitable doctrine of judicial estoppel to bar Everett Hangar’s challenge. Second, the trial court gave theNo.77365-8-1/2

words ‘complete” and “completion”theirordinary, usual, and popularmeaning by adopting their dictionary definitions and adopted a common industry definition of “substantial completion.” Using these definitions, the trial court did not err in finding that lot 13was notsubstantiallycomplete. We affirm. BACKGROUND Snohomish County (County) owns neighboring lots 11, 12, and 13 at the Snohomish CountyAirport (Paine Field). Historic Hangars LLC leases lot 11 and Kilo Six LLC leases lot 13. The Historic Flight Foundation (Foundation), a nonprofit entity that runs an aviation museum, subleases lot 11 from Historic Hangars. John Sessions owns all three ofthese entities. Dean Weidner owns Everett Hangar LLC, which leases lot 12. Historic Hangars and Everett Hangar
own the hangars on lots 11 and 12, respectively. Lot 13 remains empty. Kilo Six has used lot 13 periodically for Paine Field and Foundation events and as parking foraircraftand vehicles. To facilitate separate ownership and operation of the three lots, Kilo Six and the County executed the CC&Rs. The CC&Rs created the Association, which, in turn, enforces them. The Association has three members, Historic Hangars, Everett Hangar, and Kilo Six, each ofwhich has a leasehold interest in
one ofthe three lots. The CC&Rs assign voting rights to each member. These
are equal to that member’s “Percentage Interest” ofthe “Property” comprised of
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lots 11, 12, and 13. Historic Hangars has 20 percent ofthe Association’svoting rights, Everett Hangar has 34 percent, and Kilo Six has 46 percent. Section 9.1 ofthe CC&Rs limitsvoting eligibility:

The Association is hereby authorized to levy assessments against each Lot for Association expenses as the Board may specificallyauthorize from time to time. There shall be three types of assessments: (a) Base Assessments to fund Common Expenses for the general benefit of all Lots, allocated in accordance with the respective Percentage Interests of the Lots.

. . . [Hjowever, no Base Assessments shall be levied against any Lot unless and until Declarant has certified to the Board that development ofsuch Lot is substantially complete, and such Lot’s Percentage InterestofCommon Assessments shall, until such time, be allocated among the Lots for which such certification of substantial completion has been made by Declarant, pro rata in accordance with such Lots’ relative Percentage Interests, and untU such certification of substantial completion the Owner shall be a Member, butshall notbe entitled tovote onAssociation matters. (Emphasis added.) Kilo Six is the “Declarant” that has the authority to certify a lotas substantiallycomplete. In 2014, Everett Hangarsued Kilo Six, the Association, Historic Hangars, and the Foundation in Snohomish County Superior Court (Snohomish County lawsuit), claiming they violated multiple provisions ofthe CC&Rs. Aftera bench trial, the trial courtawarded Everett Hangarsome injunctive relief. Butthe court denied Everett Hangar’s requesttoerectafence around the lot 12 parking lot. After the trial, Everett Hangar asked that the Association hold a membership meeting to vote on its proposal to build a perimeterfence. The day beforethis meeting, Everett Hangare-mailed Sessions, stating that itwanted the -3-No. 77365-8-I /4

Association to apportion the common expenses previously allocated onlyto lots 11 and 12to allthree lots in the “same Tot percentage allocation asthe restofthe expenses.” Sessions rejected this request. He stated that because lot 13 was undeveloped, Kilo Sixshould not be required to share in costsforservicesthat it did not use, including landscape maintenance, parking maintenance, and garbage collection. On January 12, 2016, during the meeting, Everett Hangarasserted that lot 13 was ineligible to vote on Association matters because Kilo Six had not certified it as substantially complete under section 9.1 of the CC&Rs. Kilo Six had notdeclared any ofthe lots substantially complete. Sessions adjourned the meeting without a vote on the fence proposal. On January 21, Sessions sent a letter to the Association board members, certifying lots 11, 12, and 13 as substantially complete under section 9.1 of the CC&Rs. Everett Hangar responded thatthe certificatewas ineffective because Kilo Six had notyet builta hangaron lot 13. Kilothen filed this lawsuit, asking the courtto declare that lot 13 is eligible to vote on Association matters. Everett Hangarfiled a counterclaim, asking the courtto declarethat Kilo Six is noteligibletovote onAssociation matters until the development of lot 13 is substantially complete as required by the CC&Rs. Everett Hangaralso asserted that Kilo Sixviolated its duty ofgood faith and fair
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dealing by issuing the certificate ofsubstantial completion for lot 13. After a bench trial, the trial court (1) denied plaintiffs’ request for declaratory relief, (2) declared the Association’s lot 13 certification null and void because lot 13 is not substantially ccmplete, (3) concluded thatjudicial estoppel did not bar Everett Hangarfrom challenging Kilo Six’s rightto vote, (4) held that theAssociation breached thedutyofgood faith and fairdealing itowed to Everett Hangar by certifying lot 13’s development as substantially complete, and (5) awarded Everett Hangarattorneyfees. Kilo appeals. ANALYSIS Judicial Estoppel First, Kilo claims that the trial court abused its discretion by not applying judicial estoppel to bar Everett Hangar’s challengeto Kilo Six’s rightto vote. We disagree. The equitable doctrine of “[j]udicial estoppel ‘precludes a party. from asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position.’ It is intended to protectthe integrity ofthe courts but is not designed to protect litigants.”1 Courts examine three factors to decide whether judicial estoppel applies: (1) did a party assert a position inconsistent with an earlier one, (2) would acceptance ofthe position create the Arp v. Riley, 192 Wn. App. 85, 91, 366 P.3d 946 (2015) (internal quotation marks omitted) (quoting Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007)).No. 77365-8-I /6

perception that a party misled a court in either proceeding, and (3) would the party asserting the inconsistent position receive an unfair advantage or impose
an unfair detriment.2 But these factors are not an “exhaustive formula.”3 “[C]ourts must applyjudicial estoppel attheirown discretion; they are not bound to apply it but rather must determine on a case-by-case basis if applying the doctrine is appropriate.”4 This court reviews a trial court’s decision to apply judicial estoppel forabuse ofdiscretion.5 Atrial courtabuses its discretion when it bases its decision on untenable grounds orreasons.6 A. InconsistentPositions Kilo asserts that Everett Hangar’s claim that Kilo Six is ineligible to vote is inconsistentwith the position that it asserted throughoutthe Snohomish County lawsuit. We agree. In the Snohomish County lawsuit, Everett Hangar sought injunctive relief, claiming that the Association, Kilo Six, Historic Hangars, the Foundation, and Sessionsviolated an easementand safety and security provisions ofthe CC&Rs. Everett Hangarasserted in its amended complaint, atsummaryjudgment, and at trial that Sessions controlled two thirds of the Association’s voting interest. Everett Hangar, in itsopening statementattrial, stated,
2~, 192Wn. App. at92.

~ 192Wn.App. at92. “&Q, 192Wn. App. at92. 

# 5arn, 192Wn. App. at9l. 6 Harrisv. Fortin, 183Wn. App. 522, 527, 333 P.3d 556 (2014). -6-No. 77365-8-I /7
Mr. Sessions, through the various defendant entities he controls, owns and exercises complete domination—complete dominion rather over Lot 11 and Lot 13 and controls the owners association that manages all the lots. That is not in controversy. Documents are set up to give him control overthe association, because voting rights are based on the square footage of the leasehold, and 

### ~ combination of the Lot 11 leasehold, which is the smallest of the three and Lot 13 vacant lot adds up to 66 percent. So he has complete control overthe owners association, and thatwill become significant in a moment. (Emphasis added.) Here, Everett Hangar claims that because lot 13 is not substantially complete, Kilo Sixdoes not have the rightto vote lot 13’s percentage interest on Association matters. As a result, Sessions does not have the controlling votes
on theAssociation’s board. This position is inconsistentwith its previous position that Sessions controlled theAssociation. Substantial evidence supports the trial 

### court finding that Everett Hangar asserted an inconsistent position in the Snohomish County litigation. B. Reliance Kilo next claims that the Snohomish County Superior Court’s acceptance of Everett Hangar’s inconsistent position creates a perception that either the Snohomish County court or the trial court in this litigation was misled. We disagree. The Snohomish County Superior Court did, in fact, accept Everett Hangar’s inconsistent position. The court concluded that “Mr. Sessions has the -7-No. 77365-8-I /8

controlling votes on [the Association’s] Board, byvirtue ofthe number ofshares he holds for Lots 11 and 13. Accordingly, the Court finds that Mr. Sessions is

inconsistencycreatesthe perception thateithercourtwas misled. The parties did not dispute Kilo Six’s voting rights in the Snohomish County lawsuit. In responseto Everett Hangar’s change ofvenue request in this litigation, Kilo Six stated, “The [Snohomish County] trial had nothing to do with the parties’ voting rights in the Association.” In addition, the Snohomish County Superior Court entered the amended permanent injunction against only Historic Hangars and the Foundation based on violations ofthe easement and the safety and security provisions ofthe CC&Rs. The court did not enjoin conduct by the Association or Kilo Six. Because the earlier lawsuit was unrelated to Kilo Six’s voting rights and the trial court in this lawsuit reviewed de novo whether Kilo Six had the right to vote lot 13’s percentage interest, substantial evidence supports functionally in control of all four organizations.” that Everett Hangar’s inconsistent position does eithercourtwas misled becausethe record does
was material to the outcome of the Snohomish relied on Everett Hangar’s inconsistent position to does not requirethatthe previouslyaccepted pos in the later proceeding. Butthe materialityofthe But, here, the trial court found not create the perception that notshowthatthe inconsistency County lawsuit or that Kilo Six its detriment. Judicial estoppel ition be materialtothe outcome position can affectwhetherthe

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its finding that Everett Hangar’s inconsistent position did not create the perception thateitherthe Snohomish County SuperiorCourt orthetrial courtwas misled. C. Equity Kilo also claims that Everett Hangar’s inconsistent position benefited it. Wedisagree. Kilo asserts that Everett Hangarwill receive an unfair benefit ifthis court affirms the trial court’s decision because Kilo Six cannot exercise lot 13’s voting percentage interest. They claim that this judgment would not have been available to Everett Hangar in the Snohomish County lawsuit in which it successfullyassertedthat Sessionscontrolled theAssociation’svotes. But, consistentwith thetrial court’s finding, Kilo alsotooka position in the Snohomish County lawsuitthat is inconsistentwiththeirposition here. There, the parties did not contest that lot 13 remained undeveloped and “vacant.”7 Similarly, in responsetotheAssociation’s 2016 proposed budget, Everett Hangar e-mailed Sessions, stating that itwould liketheAssociation to allocate expenses previously assigned to only lots 11 and 12 to all three lots “in the same lot percentage allocation as the rest ofthe expenses” because “so much time has passed and

. . . Lot [13]

. . . has notyet been constructed.” Sessions responded

~ Everett Hangar, LLC v. Kilo 6 Owners Ass’n, No. 73504-7-I, slip op. at3 (Wash. Ct. App. Aug. 8, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/735047.pdf. -9-No. 

### 77365-8-I/ 10

that because lot 13 remained undeveloped, it did not require the same maintenance as lots 11 and 12. But “[w]hen developed, it should participate pro rata as itwill cause all of [the maintenance] expensesto increase.” By contrast, just 10 days afterthis e-mail exchange, and after Everett Hangarasserted that lot 13 was ineligible to vote on Association matters because Kilo Six had not certified lot 13 as substantially complete, Kilo Six certified lot 13 as substantially complete. Similarto the trial court, we conclude that because both parties have taken inconsistent positions, not applying judicial estoppel to bar Everett Hangar’s claims would not provide either party an unfair advantage or cause eitherpartyan unfairdetriment. The trial court did not abuse its discretion by deciding notto applyjudicial estoppel to bar Everett Hangar’s claim. The CC&Rs Kilo next challenges the trial court finding that Kilo Six abused its discretion when itcertified lot 13 as “substantiallycomplete.” We disagree. To interpret a restrictive covenant, a court looks to the intent of the drafters.8 To determine the intent of the contracting parties, a court applies contract interpretation rules.9 This means it “view{s] the contract as a whole, its subject matter and objective, the circumstances surrounding its making, the

~Wimberlyv. Caravello, 136Wn. App. 327, 336, 149 P.3d 402 (2006).

~Wimberly, 136Wn. App. at336. -10-No. 77365-8-I / 11

subsequent acts and conduct of the parties, and the reasonableness of the interpretations advocated bythe parties.”1° A court “generally give{s] words in a contract their ordinary, usual, and popular meaning unless the entirety of the agreement clearly demonstrates a contrary intent.”1 A court may consider extrinsic evidence about the circumstances under which the parties formed the contractto help itdecidethe parties’ intent.12 A. StandardofReview An appellate court reviews challenged findings of fact for substantial evidence.13 Substantial evidence requires “a sufficient quantum of evidence in the record to persuade a reasonable person that afinding offact istrue.”4 This court reviews questionsoflawde novo.15 “The parties’ intentions [in entering into
a contract] are questions offact, whilethe legal consequences ofsuch intentions
are questions of law.”6 We review de novo mixed questions of law and fact whenthe partiesdo notdisputethefacts.17

10Wimberly, 136Wn. App. at336.

~ Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 504, 115 P.3d 262 (2005). 12Wimberly, 136Wn. App. at336. 13 Pardeev. Jolly, 163Wn.2d 558, 566, 182 P.3d 967 (2008). 14 Pardee, 163Wn.2d at566.

~ Pardee, 163Wn.2d at566. 16 Pardee, 163Wn.2d at566. ‘~ Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 441, 191 P.3d 879 (2008). —11—No. 77365-8-I / 12 Here, Everett Hangar asserts that this court should use the substantial evidence standard because Kilo disputes same factual issues. Because Kilo does notdispute thefacts underlying the parties’ intent orcourse ofperformance and this court reviews mixed questions of law and fact de novo, we use the de
novastandard. B. The Plain Language ofthe CC&Rs First, Kilo asserts that the trial court’s use of a statutory definition of “substantial completion” contradicts express terms in the CC&Rs. We rejectthis claim. The CC&Rs do not define “substantially complete.” The trial court.relied
on the dictionary definitions of “completion” and “complete.” “Completion’ is defined as the ‘act or action of completing, becoming complete, or making complete.” “Complete’ is, in turn, defined as ‘possessing all necessary parts, items, components, or elements’; ‘brought to an end or to a final or intended condition’; and ‘fully realized’ or ‘carried to the ultimate.”18 Because the trial court found that “substantial completion” was a term commonly used in the construction industry, italso relied on the definition from RCW4.16.310, astatute about claims arising from construction. RCW 4.16.310 defines “substantial completion” as “the state ofcompletion reached when an improvement upon real

18 Mattingly v. Palmer Ridge Homes LLC, 157 Wn. App. 376, 394, 238 P.3d 505 (2010) (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 465 (2002)). -12-No. 77365-8-1/13

property may be used or occupied for its intended use.” Applying these definitions to section 9.1 of the CC&Rs, the trial court found that a “Lot,” as defined in the CC&Rs, is “substantially complete when the improvements have been completed sufficient to allow the property to be occupied for its intended use.” The trial court viewed the CC&Rs holistically and concluded that the circumstances surrounding the drafting ofthe CC&Rs, including evidence about why the parties incorporated “substantially complete” into the CC&Rs, support using the ordinaryand usual meaning of“substantially complete.” The courtalso concluded that witness testimony, the lot 13 lease, and other governing documents discussed below also showthat lot 13 is substantially complete only with a hangar. First, thetrial court relied on thetestimony of RogerCollins, cofounderand formercomanagerof Kilo Six. Collinstestified that he asked Sessionsto add the “substantially complete” language to section 9.1 when Sessions stated that he did not believe that lot 13 should have to pay for certain base assessments as long as it remained undeveloped. Collins told Sessionsthat because the project
was undeveloped, Sessions should befree from paying dues, but, consequently, Sessions could notvote those shares on Association business. Sessions did not disputethistestimony.
-13-No. 77365-8-I / 14 Collins alsotestified that he and Sessions leased the lotsfrom Paine Field to build three separate hangars, inàluding one on lot 13. He stated that at no point during his tenure as coowner and comanager of Kilo Six did the development of lot 13 contemplate a lot without a hangar on it. And he stated that Everett Hangar purchased the lot 12 hangar, in part, based on the promised construction ofa hangar on lot 13. Collins testified that as it sits today, lot 13 is notsubstantiallycomplete. Additional witness testimony and the lot 13 lease also show that the parties intended lot 13to be substantiallycomplete onlywith a hangar. Weidner testified that Kilo Six repeatedly represented to him that lot 13 would be developed with a hangar. Similarly, Sessions and the witnesses for Paine Field testified thatthe lot 13 lease requires Kilo Sixto build a hangaron it, and Paine Field expects Sessions to do so. Although the lot 13 lease gives Kilo Six the rightto decidewhen to constructthe hangar, it requires Kilo Sixto build a hangar
on the lotwhen economicallyfeasibleto do so. In addition, a number of other governing documents show that Kilo Six intended lot 13to have a hangar: 1.. The original lease between Kilo Sixand the Countyshows a hangar
on what is now lot 13.

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2. The purchase and sale agreement between Weidner and Kilo 6for Weidner’s purchase ofthe lot 12 hangar states, “[Kilo 6] intends to improve the leased property so that there will be three separate hangars on the leased property.” 3. The CC&Rs state, “Because ofthe nature ofthe anticipated use of the Property as an aircraft hangarfacilityforworking aircraft, safety and security
are ofparticularconcern.” 4. Kilo Six’s amended operating agreement states, “[Kilo Six] shall continue, to pursue efforts to construct an aircraft hangar on Lot 13, and thereafter shall operate or lease Lot 13 and the hangar constructed thereon, or shall sell and transfersuch Lot 13 Lease and hangar.” Kilo contends thatthetrial court’s interpretation of“substantially complete” conflictswith two express CC&R provisions. First, Kilo notes thatthe CC&Rs do not say that a building must be constructed on lot 13 for it to be substantially complete and do not limit the Association’s sole discretion to certify lot 13 as substantially complete. But the CC&Rs do limit the Association’s discretion to certify a lot as substantially complete until the lot is actually substantially complete. And the CC&Rs do not define “substantially complete.” So the trial courtfollowed contract interpretation principlesto “define substantially complete.” It adopted the phrase’s ordinary meaning by relying on both the dictionary
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definitions of “completion” and “complete” and the common industry definition of “substantial completion.” Wefind Kilo’s claim ofconflict unpersuasive. Second, Kilo maintains that the CC&Rs state that the Association need certify only a lot, not a building, as substantially complete. The CC&Rs define “Lot” as the “ground leasehold interest in such Lot.” They define “Building” as “[a]ny building, aircraft hangar, storage shed, or other improvement on the Propertythat has one or more walls and a roof or overhead cover.” Section 9.1 states, “tN]o Base Assessments shall be levied against any Lot unless and until Declarant has certified tothe Board thatdevelopment ofsuch Lot is substantially complete.” (Emphasis added.) Kilo asserts that the CC&Rs assignment of different definitions to “Lot” and “Building” means that the Association need certify only a Lot as substantially complete to levy base assessments on it and that it need not have a hangar on it to qualify forthis certification. But, again, because the CC&Rs do not define “substantially complete” and the provisions that Kilo relies on do not establish what the drafters intended it to mean, this argument is unpersuasive. Kilo does not show that the definitions the trial court relied on or the court’sfinding that lot 13 is notsubstantiallycomplete conflictwith any provisions ofthe CC&Rs.

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C. The Parties’ Course ofPerformance Kilo also asserts that the trial court misapplied the parties’ course of performance doctrine. Wedisagree. A court may explain or supplement contractual terms with the parties’
course of dealing, usage of trade, or course of performance.19 The parties’ “course of performance’ refers to 

### ‘[a] sequence of previous performance by either party after an agreement has been entered into, when a contract involves repeated occasions for performance.”2° “[T]he express terms of an agreement and any applicable course of performance

. . . must be construed whenever reasonable as consistent with each other.”21 If unreasonable, “[e]xpress terms prevail overcourse ofperformance.”22 The trial court concluded that the parties’ course of performance did not support Kilo Six’s claim that all members accepted lot 13 as substantially complete or that Kilo Six has the right to vote. Kilo claims that the trial court improperly disregarded the parties’ course of performance. It notes that lot 13 paid some base assessments that it would not have done ifthe parties did not consideritsubstantiallycomplete.

19 Morgan v. Stokely-Van Camp, Inc., 34 Wn. App. 801, 805, 663 P.2d 1384 (1983). 20 Spradlin Rock Prods., Inc. v. Pub. Util. Dist. No. 1 of Grays Harbor County, 164 Wn. App. 641, 661, 266 P.3d 229 (2011) (alteration in original) (quoting BLACK’S LAWDICTIONARY405 (9th ed. 2009)). 21 RCW62A.1-303(e). 22 RCW62A.1-303(e)(1). -17-No. 77365-8-I / 18
Kilo relies on Everett Hangar’s answers to certain allegations in their complaint to show that Everett Hangar admitted that Kilo Six paid some base assessments and not others with Everett Hangar’s permission. Kilo alleged in theircomplaint, Since the Association’s inception, each Member has paid Association base assessments. With Everett Hangar’s consent, Kilo Six paid Association base assessments only for services Kilo Six consumed, such as mowing and irrigation. With Everett Hangar’s consent, Kilo Six did not contribute to assessments for other services, such as landscaping and garbage collection, that were not consumed by Kilo Six. This was true even under Association budgets originally prepared and proposed by Everett Hangar. In Everett Hangar’s answer, it“admit[ted] theallegations in this paragraph.” Kilo also relies on Everett Hangar’s answerthattothe allegation that Everett Hangar took the position on January 12, 2016 that the developmentof Lot 13—which was originally intended to include an aircraft hangar for Historic Flight Foundation—is not substantially complete, and that Lot 13’s Owner, Kilo Six, therefore cannot vote an Association matters pursuantto Section 9.1 ofthe CC&Rs, even though Kilo Six had been charged and had paid base assessments sincetheAssociation’s inception. Everett Hangar responded, “[It] admits the allegations of this paragraph, and furtherrespondsthat itwas Kilo Sixwho, attheJanuary 12, 2016 meeting, stated and confirmed thatdevelopmentofLot 13was notsubstantiallycomplete.” Further, Kilo alleged in their complaint that “[a]t the January 12, 2016 meeting, Everett Hangar argued that Kilo Six was entitled to a refund of all

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Association assessments paid by Kilo Six to date.” Kilo relies on Everett Hangar’s response: [It] admitsthat, attheJanuary 12, 2016 meeting, itoffered tovote in favor of refunding the Association base assessments paid for [by] undeveloped Lot 13 provided that Kilo Six abide by the other consequences of its failure to develop the lot pursuant to Section 9.1 ofthe CC&Rs. Everett Hangarotherwise deniesthe allegations inthis paragraph. Everett Hangar’s responses show that the Association charged lot 13
some base assessments. But consistent with the trial court’s reasoning, the parties’ course of performance does not clarifywhetherthe parties’ believed that lot 13 was substantially complete; it.does not support Kilo Six’s position thatthe parties’ dourse of performance establishes that the parties treated lot 13 as substantiallycompletefortwo reasons. First, substantial evidence supports the trial court finding that the parties’
course of performance was inconsistentwith the clear and express terms ofthe CC&Rs. Although whenever possible the express terms of the agreement and the parties’ course of performance should be construed as consistent with one another, this is not possible here. The parties agree that Kilo Six first certified lots 11, 12, and 13 as substantially complete on January 21, 2016, after Everett Hangar challenged lot 13’s voting eligibility. Even so, as discussed above, the parties annually assessed at least some base assessments to the owners of each lot. This conduct conflictswith section 9.1. Until Kilo Sixcertified any lotto -19-No. 77365-8-I /20

be substantially complete, the Association should not have assessed any base assessments against that lot. When the express terms of the CC&Rs and the parties’ bourse of performance cannot be reconciled, the express terms prevail. And, as discussed above, based on the dictionary and common industry definitions of“substantiallycomplete,” lot 13was notsubstantiallycomplete. Second, the trial court noted that although lot 13 paid some of the maintenance costs levied against the lots, it refused to pay all of the base assessments that lots 11 and 12 paid. As discussed above, in January 2016, Kilo Six refused to pay for a number of base assessments, including landscape maintenance, parking lot maintenance, storm drain maintenance, and garbage costs. And thatsame month, Everett Hangaroffered tovote in favorof refunding lot 13 the base assessments that it had paid. Because the parties’ course of performance shows that lot 13 paid only some base assessments and Everett Hangarwas in favorof lot 13 paying more or less base assessments at different periods, the trial court did not err in concluding that the parties’ course of performance does not show that all members considered lot 13 substantially complete. D. The DutyofGoodFaith and FairDealing Last, Kilo challenges the trial court decision that Kilo Sixviolated its duty of good faith and fair dealing by certifying lot 13 as substantially complete.
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“[Wjhen a party has discretion overa future contractterm, it has an implied duty of good faith and fair dealing in setting and performing that contractual term.”23 This court reviews a breach ofcontractfinding, including the implied duty ofgood faith andfairdealing, forsubstantial evidence.24 Kilo challengesthetrial court’s conclusion that Kilo Sixviolated its duty of good faith and fairdealing on one ground—thatthetrial court erred in concluding that lot 13 must have a hangar to be substantially complete. As discussed above, we conclude that the trial court did not err in deciding that lot 13 is not substantiallycompletewithouta hangar. Accordingly, we reject Kilo’s claim. Attorney Fees Everett Hangar requests attorney fees on appeal under the CC&Rs and RAP 18.1. RAP 18.1 allows a reviewing court to award a party reasonable attorneyfees ifapplicable lawgrants a partythe rightto recoverthem. Here, the CC&Rs state, ‘In any action to enforce the provisions of this Declaration or Association rules, the prevailing party shall be entitled to recover all costs, including, without limitation, reasonable attorneys’ fees and court costs, reasonably incurred in such action.” Because this lawsuit concerns whether lot 13 is substantially complete under the CC&Rs, we award Everett Hanger

23 Rekhterv. DeptofSoc. & Health Servs., 180Wn.2d 102,115,323 P.3d 1036 (2014). 24 Frank Coluccio Constr. Co. v. King County, 136 Wn. App. 751, 762, 764, 150 P.3d 1147 (2007). -21

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attorney fees on appeal as the substantially prevailing party, subject to its compliancewith RAP 18.1(d). CONCLUSION Judicial estoppel does not bar Everett Hangar’s challenge to Kilo Six’s voting. The trial court did not err in finding that lot 13 is not “substantially complete” based on the ordinary and usual meaning of the phrase and the parties’ intended use oflot 13. We affirm.

WE CONCUR:

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