IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

BANNER BANK, a Washington 

corporation,

Plaintiff,

v.

REFLECTION LAKE COMMUNITY 

ASSOCIATION, a nonprofit corporation; 

and RICK SMITH,

Respondents, 

JAMES POWERS,

Appellant.

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No. 38048-3-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — James Powers appeals after the trial court granted 

summary judgment in favor of Reflection Lake Community Association and Rick Smith. 

He argues the trial court erred by not striking a declaration, and it abused its discretion by 

not continuing the summary judgment hearing. We disagree and affirm.

FACTS

This case stems from an interpleader action filed by Banner Bank to determine the 

rights to accounts it holds as between two competing boards of directors for a 

homeowners’ association. 

FILED

JANUARY 25, 2022

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 38048-3-III

Banner Bank v. Reflection Lake Cmty. Ass’n

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Reflection Lake Community Association election

Reflection Lake is a manmade lake in northeast Spokane County. The Reflection 

Lake Community Association (RLCA), a nonprofit corporation and homeowners’ 

association, serves the community around the lake. In the spring of 2020, an ongoing 

dispute about management led to the resignation of eight of the nine directors on the 

board of directors. The remaining director appointed eight replacements. The newly 

appointed board failed to hold the customary annual election in July, and a small number 

of community members decided to form an election committee in an effort to persuade 

the appointed board to schedule an election. 

In August, members of the election committee went door to door to gather support 

for a petition demanding the appointed board hold an election. If the appointed board did 

not comply, the signers of the petition also indicated support for removing the appointed 

members of the board and holding an election for those positions. The RLCA bylaws 

provide that a special meeting to remove and elect directors may be called by 40 percent 

of the voting power of the association. The election committee collected signatures from

approximately 70 percent of RLCA members. 

The appointed board refused to hold the election, and the election committee 

proceeded with the special meeting and election. To comply with COVID-19 restrictions 
No. 38048-3-III

Banner Bank v. Reflection Lake Cmty. Ass’n

3

on large gatherings, the election committee mailed a combination ballot and proxy 

designation form, allowing RLCA members to simultaneously indicate their vote and 

designate the election committee as their directed proxy to cast such votes in the election. 

In late September, the election committee held a special meeting to remove the 

appointed board members and elect their replacements. By virtue of their proxy 

designations, the election committee represented sufficient voting power to constitute a 

quorum for business. As a result of the election, seven of the eight appointed directors 

were removed. 

Access to RLCA bank accounts

Shortly after the election, James Boothby, the newly elected treasurer of the board, 

contacted the Washington Secretary of State and began the process of becoming RLCA’s 

registered agent. He received confirmation this process was complete on 

October 8, 2020. Meanwhile, the ousted members of the appointed board retained 

counsel, who contacted Banner Bank on October 6 to inform it there were competing 

boards of directors. When Mr. Boothby attempted to sign on as the authorized owner of 

RLCA’s accounts on October 8, Banner Bank refused and directed his inquiries to its 

legal department.
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On October 13, Banner Bank notified members of both the elected and appointed 

boards that RLCA’s accounts were frozen. In November, Banner Bank filed a complaint 

for interpleader, naming as defendants James Powers, president of the appointed board, 

Rick Smith, president of the elected board, and RLCA itself.1

On November 19, 2020, Mr. Powers and other members of the appointed board 

filed a separate lawsuit against RLCA, Mr. Boothby, Mr. Smith, and other members of 

the elected board, requesting a declaratory judgment that the election was not valid under 

the RLCA bylaws or state statutes, a declaratory judgment that the RLCA board had no 

control over the water association serving Reflection Lake homes, and a reorganization of 

RLCA into two separate community associations.2 Mr. Powers’s counsel in the 

interpleader case, William C. Schroeder, also represented the plaintiffs in this second 

case. 

RLCA’s motion for summary judgment

On December 14, 2020, RLCA and Mr. Smith3filed a motion for summary 

judgment in the interpleader action, arguing there was no genuine issue of material fact in 

 

1 Spokane County Case No. 20-2-03199-32.

2 Spokane County Case No. 20-2-03213-32.

3 For succinctness, we will refer to RLCA and Mr. Smith collectively as “RLCA.”
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dispute about whether the election was held in compliance with RLCA’s bylaws and 

applicable statutes. The motion was supported by several exhibits, a declaration from a 

member of the election committee, a declaration from an RLCA member who voted in the 

election and had previously served on the board, and a declaration from Mr. Boothby. A 

hearing on the motion was scheduled for January 12, 2021.

Mr. Schroeder promptly reached out via e-mail to RLCA’s attorney, Tyler Lloyd, 

about his intent to schedule depositions of the declarants over December 21-23. On 

December 14 and 15, Mr. Lloyd e-mailed about the possibility of pushing back the 

summary judgment hearing so the depositions would not conflict with December 

holidays. Mr. Schroeder agreed to hold the depositions in the first two weeks of January; 

the hearing was ultimately rescheduled for January 29, 2021. On December 21, Mr. 

Lloyd provided availability for depositions of all three declarants, but Mr. Schroeder 

noted only Mr. Boothby for deposition on January 6. On January 4, Mr. Lloyd confirmed 

Mr. Boothby’s deposition and inquired about depositions for the other two declarants. In 

response, Mr. Schroeder indicated they would decide after Mr. Boothby’s deposition 

whether further depositions were needed. 
No. 38048-3-III

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Mr. Boothby’s deposition

Mr. Boothby was deposed on January 6, 2021. After asking some biographical 

questions, Mr. Schroeder began asking Mr. Boothby about the formation of the water 

association, which was the subject of a separate lawsuit between Mr. Powers and Mr. 

Boothby. While Mr. Boothby stated in his declaration that a dispute led to the previous 

board’s resignation and while that dispute in fact involved the water association, Mr. 

Boothby’s declaration did not anywhere reference the water association. Mr. Lloyd 

objected to the relevance of the question in relation to the interpleader action, and Mr. 

Schroeder informed him, “I am going to ask the questions I planned on asking.” Clerk’s 

Papers (CP) at 148. After another question to Mr. Boothby about the water association, 

Mr. Lloyd again objected, leading to a dispute with Mr. Schroeder:

MR. LLOYD: I will object to the relevance of this whole line of 

inquiry.

MR. SCHROEDER: Did you just instruct him to not answer?

MR. LLOYD: I am objecting to the relevance of the question.

MR. SCHROEDER: I understand your objection. Are you telling 

him to not answer? That’s the important thing.

MR. LLOYD: Yes.

[MR. SCHROEDER]: Okay. I’ll put on the record that you’ve just 

been directed to not answer. It’s not a matter of privilege or any other thing 

asserted.

MR. SCHROEDER: I am going to call an end to the deposition and 

seek a ruling from the Court.

CP at 148. Mr. Schroeder terminated the deposition after 13 minutes.
No. 38048-3-III

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Because the deposition was via videoconference software, Mr. Lloyd called Mr. 

Schroeder to attempt to continue the deposition after Mr. Schroeder ended the session. 

Mr. Lloyd and Mr. Schroder were unable to agree to continue the deposition, although 

both later indicated their willingness to do so. Mr. Lloyd sent Mr. Schroeder a letter on 

January 6, indicating Mr. Schroeder’s stated intent to seek a court order was unnecessary 

and that Mr. Boothby and the two other declarants remained available for depositions on 

the subject of the interpleader action. 

Mr. Powers’s motions to strike and continue

Despite what Mr. Powers’s counsel said when ending the deposition, he did not 

seek a ruling from the court on the deposition issue. Nor did he request depositions from 

the remaining two declarants. Nor did he file a response to RLCA’s motion for summary 

judgment. Instead, Mr. Powers filed a motion to strike Mr. Boothby’s declaration 

because of the discovery dispute and a motion to continue the summary judgment hearing. 

In his motion to strike Mr. Powers argued that because instructing a deponent not 

to answer is improper, the court should strike the Boothby declaration, order the costs of 

the deposition be paid by RLCA, and order that Mr. Powers be permitted to redepose Mr. 

Boothby without counsel interfering. 
No. 38048-3-III

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In his motion to continue, Mr. Powers contended that RLCA scheduled their 

summary judgment so that all discovery and the written response would have to be 

completed the week of Christmas. He contended that RLCA “balked” when depositions 

were requested and that counsel’s interference at Mr. Boothby’s deposition rendered it 

pointless. CP at 101. Mr. Powers argued he was refused discovery material and was 

entitled to a continuance under CR 56(f). 

Mr. Powers’s motions were noted to be heard on January 29, 2021, at the same 

time as RLCA’s summary judgment motion. Due to an error in Mr. Schroeder’s office, 

however, Mr. Powers’s motions were not confirmed as required by local rule.4

SCLR 40(b)(9)(C) required RLCA to serve and file its responsive documents 

seven days before the January 29 hearing. RLCA served and filed its response on 

January 25, 2021, three days late. Mr. Powers moved to strike the untimely response. 

There is no indication the trial court considered RLCA’s responsive documents. 

 

4 Spokane County Superior Court local civil rule (SLCR) 40(b)(9)(E) provides in 

relevant part: “In the event a motion . . . is to be argued, counsel for the moving party 

shall confirm with all opposing counsel that they are available to argue the motion and 

then notify the judicial assistant for the assigned judge by 12:00 p.m. three (3) days prior 

to the hearing that the parties are ready for the hearing.”
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January 29 hearing

On January 29, the superior court had before it the motion to strike the declaration, 

the motion to continue the summary judgment, and the motion for summary judgment. 

Mr. Powers, through counsel, admitted that he failed to confirm his motions. Pursuant to 

local rule,

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the court struck Mr. Powers’s motions. 

The court then turned to the summary judgment motion. It assured the parties it 

had fully reviewed the record and said the only issue was whether 70 percent of the 

association members who signed the petition constituted 40 percent of RLCA’s voting 

power, as required by the bylaws to call a special meeting. 

Mr. Powers argued that there were unresolved issues with proxies and 

confidentiality due to the unfinished deposition. He stated there were witnesses who had 

asked to see records of who held the proxies and the results of the election, and who were 

told the information was confidential. 

RLCA argued there was no reasonable debate that the 70 percent of the association 

members who signed the petition constituted at least 40 percent of the voting power of 

RLCA. While there were some owners who owned multiple lots, it was not a 

 

5 SLCR 40(b)(9)(H) provides in relevant part: “Failure to timely comply with these 

requirements may result in . . . the motion being stricken from the calendar . . . .”
No. 38048-3-III

Banner Bank v. Reflection Lake Cmty. Ass’n

10

community where a single property owner or developer held a majority of the property. 

RLCA argued that the question of the proxies was a different issue than the petition 

calling the election, instead having to do with the confidential information of which 

resident voted for which candidate in the election.

When invited by the court to argue further against the motion for summary 

judgment, Mr. Powers made an oral motion to strike Mr. Boothby’s declaration because 

of the dispute during the deposition. RLCA responded that there had been no good faith 

effort to resolve the dispute. 

The court noted the issue with Mr. Boothby’s deposition, but found that “the 

evidence and record are overwhelming in that there really are no disputed material facts 

between the parties and summary judgment is appropriate as a matter of law.” Report of 

Proceedings (RP) at 16. It found that the evidence in the record “undisputedly indicates 

that the special meeting requirement of 40 percent was triggered” by the election 

committee’s petition. RP at 17. The court noted that if Mr. Powers could show that the 

70 percent of members who signed the petition did not collectively hold 40 percent of the 

voting power, it would be inclined to change its ruling, but that Mr. Powers had failed to 

demonstrate there was a genuine dispute on that fact. 

Mr. Powers appeals. 
No. 38048-3-III

Banner Bank v. Reflection Lake Cmty. Ass’n

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ANALYSIS

A. THE LOCAL RULE IS NOT INCONSISTENT WITH CR 56(f)

Mr. Powers seems to argue that SLCR 40(b)(9)(E)’s requirement that motions be 

confirmed is inconsistent with CR 56(f) and is therefore invalid. We disagree.

CR 83(a) authorizes local superior courts to adopt rules that are not inconsistent 

with the general civil rules. Local rules are inconsistent under CR 83(a) when they are 

“‘so antithetical that it is impossible as a matter of law that they can both be effective.’” 

Sorenson v. Dahlen, 136 Wn. App. 844, 853, 149 P.3d 394 (2006) (quoting Heaney v. 

Seattle Mun. Court, 35 Wn. App. 150, 155, 665 P.2d 918 (1983)). 

CR 56(f) neither requires nor prohibits timely confirmation of a motion to continue 

a summary judgment hearing. For this reason, SLCR 40(b)(9)(E)—which requires all 

motions to be timely confirmed—is not antithetical to CR 56(f). 

Mr. Powers also asserts that the trial court treated his noncompliance with the local 

rule as dispositive of the summary judgment motion. We disagree.

The trial court treated the motions as separate. After ruling that it would not 

consider Mr. Powers’s motions, the trial court heard arguments on RLCA’s summary 

judgment motion. Because there were no genuine issues of material fact and the record 
No. 38048-3-III

Banner Bank v. Reflection Lake Cmty. Ass’n

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confirmed that the elected board was duly elected in accordance with its by-laws, the trial 

court granted RLCA’s summary judgment motion.

Mr. Powers also argues that SLCR 40(b)(9)(H) does not provide that default or 

summary dismissal are among the consequences for failing to properly confirm a 

responsive motion. There are two reasons why this argument fails. 

First, Mr. Powers’s motions were not responsive motions, if there is such a thing. 

He was asking the trial court for affirmative relief and SLCR 40(b)(9)(E) required him to 

confirm his motions. He admitted that his office failed to do so. SLCR 40(b)(9)(H)

authorized the trial court to strike the unconfirmed motions. 

Second, Mr. Powers’s assertion that his noncompliance with the local rule resulted 

in a default or summary judgment is disingenuous. Failure to confirm his motions did not 

cause a default or summary judgment to be entered; failure to create a genuine issue of 

material fact did. 

B. MR. POWERS’S MOTIONS TO STRIKE DECLARATION AND TO CONTINUE

Mr. Powers contends that the trial court erred by declining to strike Mr. Boothby’s 

declaration and denying his motion to continue. We disagree.

We review a trial court’s ruling on a motion to strike a declaration for an abuse of 

discretion. Hanson Indus., Inc. v. Kutschkau, 158 Wn. App. 278, 287, 239 P.3d 367 
No. 38048-3-III

Banner Bank v. Reflection Lake Cmty. Ass’n

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(2010). We also review its ruling on a request to continue a summary judgment under 

CR 56(f) for abuse of discretion. Winston v. Dep’t of Corr., 130 Wn. App. 61, 65, 121 

P.3d 1201 (2005). Accordingly, we look to whether the trial court’s decisions were 

manifestly unreasonable or based on untenable grounds or reasons. See State v. 

McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009).

Mr. Powers’s motion to continue and motion to strike were not filed in accordance 

with local rules. As discussed above, the court was within its discretion to decline to hear 

the motions on that basis. Even had the court reached the merits, for the reasons 

explained below, it would have been well within its discretion to decline to grant relief to 

Mr. Powers. 

1. Motion to strike

Mr. Lloyd’s instruction to Mr. Boothby not to answer a nonprivileged question was

improper. See CR 30(h)(3). Mr. Powers argues this impropriety renders Mr. Boothby’s 

declaration inadmissible and the trial court erred by failing to strike the declaration. He 

provides no support for the contention that impropriety in a deposition renders the 

deponent’s declaration inadmissible. Nor does he provide support for the contention that 

striking Mr. Boothby’s declaration is the appropriate remedy for the improper instruction 
No. 38048-3-III

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not to answer. His cited authority merely establishes that the instruction not to answer 

was improper—but that proposition is apparent on the face of the rule. 

We note that Mr. Boothby’s declaration was unimportant to the trial court’s 

determination to grant summary judgment. Mr. Boothby’s declaration, which contained 

very little detail about the election, was redundant to the other declarations. The 

declaration that attached several exhibits and the declaration of the election committee 

member were sufficient in themselves to establish that the election was valid. Even had 

the trial court struck Mr. Boothby’s declaration, summary judgment still would have been 

appropriate. 

2. Motion to continue

A trial court may continue a motion for summary judgment under CR 56(f) if the 

nonmoving party presents affidavits stating reasons why “the party cannot present by 

affidavit facts essential to justify the party’s opposition.” Conversely, it 

may deny a motion for a continuance when (1) the requesting party does not 

have a good reason for the delay in obtaining the evidence, (2) the 

requesting party does not indicate what evidence would be established by 

further discovery, or (3) the new evidence would not raise a genuine issue 

of fact.
No. 38048-3-III

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Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671 (2003) (citing Tellevik v. Real Prop. 

Known as 31641 W. Rutherford St., 120 Wn.2d 68, 90, 838 P.2d 111, 845 P.2d 1325 

(1992)).

Here, the first basis for denying a continuance is met. After opposing counsel 

objected, Mr. Powers did not attempt to question Mr. Boothby about the election. The 

record shows that such questions would have been permitted, which would have allowed 

Mr. Powers to respond to the summary judgment motion. Nor did Mr. Powers, through 

counsel, follow through with deposing the two other declarants about the election. The 

most important declarant to depose about the election was the election committee 

member. Had the election committee member been deposed and opposing counsel

objected to questions about the election, a CR 56(f) continuance certainly would have 

been justified.

We conclude that the trial court did not abuse its discretion in denying Mr. 

Powers’s motion to strike Mr. Boothby’s declaration and in denying his motion to 

continue the summary judgment hearing. 
No. 38048-3-III

Banner Bank v. Reflection Lake Cmty. Ass’n

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C. OTHER ASSIGNMENTS OF ERROR

Mr. Powers contends the trial court erred by (1) requesting he file a motion for

reconsideration while simultaneously denying him discovery, (2) by failing to list the 

documents it considered in its order, and (3) by entering findings of fact. 

1. Direction to file reconsideration

Mr. Powers assigns error to the trial court’s invitation for him to file a 

reconsideration motion while simultaneously dismissing the case and ending discovery. 

The record reflects that, notwithstanding his failure to respond to RLCA’s motion for 

summary judgment or orally demonstrate a genuine issue of material fact, the trial court 

invited Mr. Powers to “come back on a motion to reconsider or otherwise show me that 

that 70 percent demonstrated in the record did not equate to 40 percent of the voting 

power requirement.” RP at 18. It is unclear why Mr. Powers challenges the trial court’s 

invitation to present additional evidence, evidence that as the outgoing president he might 

have. Mr. Powers devotes no argument in his brief to this assignment of error, and we do 

not consider it further. See Yakima County v. E. Wash. Growth Mgmt. Hrg’s Bd., 146 

Wn. App. 679, 698, 192 P.3d 12 (2008). 
No. 38048-3-III

Banner Bank v. Reflection Lake Cmty. Ass’n

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2. Failure to list documents in the summary judgment order

Mr. Powers also assigns error to the trial court’s failure to list the documents it 

considered in its summary judgment order. 

Under CR 56(h), the order granting summary judgment must “designate the 

documents and other evidence called to the attention of the trial court.” Similarly, under 

RAP 9.12, the appellate court considers only “evidence and issues called to the attention 

of the trial court” when reviewing a summary judgment. These rules exist so that the 

appellate court can engage in the same inquiry as the trial court in its de novo review of 

the summary judgment. See McLaughlin v. Travelers Commercial Ins. Co., 196 Wn.2d 

631, 637, 476 P.3d 1032 (2020). 

On appeal, Mr. Powers does not argue that the declarations were insufficient to 

warrant summary judgment. Rather, he argues the trial court erred in denying his motion 

to strike and his motion to continue the summary judgment hearing. These arguments do 

not require us to conduct a de novo review. The error raised here by Mr. Powers does not 

require remand for correction or any other relief. 

3. Findings of fact in the summary judgment order 

Mr. Powers also argues the trial court’s findings of fact in its summary judgment 

order are superfluous. He is correct. Chelan County Deputy Sheriffs’ Ass’n v. Chelan 
No. 38048-3-III

Banner Bank v. Reflection Lake Cmty. Ass’n

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County, 109 Wn.2d 282, 294 n.6, 745 P.2d 1 (1987). But once again, this error does not 

require remand for correction or any other relief. 

ATTORNEY FEES

RLCA argues Mr. Powers’s appeal is frivolous and attorney fees should be 

awarded to it. We agree.

Under RAP 18.9(a), the Court of Appeals may award attorney fees as a sanction 

for filing a frivolous appeal. An appeal is frivolous “‘if there are no debatable issues 

upon which reasonable minds might differ and it is so totally devoid of merit that there 

[is] no reasonable possibility of reversal.’” State v. Chapman, 140 Wn.2d 436, 454, 998 

P.2d 282 (2000) (alteration in original) (quoting State ex rel. Quick-Ruben v. Verharen, 

136 Wn.2d 888, 905, 969 P.2d 64 (1998)).

The issues raised by Mr. Powers either misconstrue the record, are easily affirmed 

under an abuse of discretion standard of review, or do not result in any relief. Through 

counsel, Mr. Powers could have questioned Mr. Boothby and the other declarants about 

the election, but when given the opportunity, chose not to. This, combined with the 

discretionary nature of the trial court’s rulings, convince us that Mr. Powers failed to raise 

any debatable issue that might result in a reasonable possibility of reversal. Subject to its

compliance with RAP 18.1(d), we award RLCA its reasonable attorney fees on appeal. 
No. 38048-3-III 

Banner Bank v. Reflection Lake Cmty. Ass 'n 

Affirmed. 

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

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Lawrence-Berrey, J. 

WE CONCUR: 

Pennell, C.J. ~~ • .:r. 

Fearing, J. 

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