IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GENE and MARALEE BOUMA,

husband and wife,

Appellants,

v.

SILVERADO COMMUNITY 

ASSOCIATION, a Washington 

nonprofit corporation,

Respondent.

No. 80853-2-I

DIVISION ONE

UNPUBLISHED OPINION

APPELWICK, J. — The Boumas appeal from summary judgment and an order 

awarding attorney fees to the Association. The Boumas contend the trial court 

erred in declining to grant their motion for summary judgment, granting the 

Association’s motion for summary judgment, and granting the Association’s motion 

for attorney fees. We affirm.

FACTS

Gene and Maralee Bouma own Gene Bouma Development, Inc. In the 

early 2000s, Bouma Development developed rural property in Whatcom County 

into two eight lot residential subdivisions, Silverado East and Silverado West. The 

Boumas sold off lots 1-7 on each property, which are each about one acre in size. 

They retained ownership of lot 8 in Silverado East and lot 8 in Silverado West. At 

32 and 33 acres, the two lots are much larger and more rural than the lots the 

Boumas sold off. 
No. 80853-2-I/2

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In 2000 and 2001, as part of the initial development of the two subdivisions, 

Bouma Development recorded covenants, conditions, and restrictions (CC&Rs) for 

each subdivision. The Silverado West CC&Rs included restrictive covenants 

recorded on November 28, 2000 that created the Silverado Community 

Association (Association) and gave it certain authorities, such as maintaining 

common areas. The CC&Rs governing both subdivisions created identical 

procedures for amendment, providing that they “may be amended in whole or in 

part signed by not less than Sixty percent (60%) of the owners of the lots affected 

by [the CC&Rs].” Acting as declarant, Bouma Development adopted and recorded 

several amendments to the original CC&Rs in 2007 and 2008. 

On May 22, 2015, the other members of the Association recorded a new 

set of comprehensive CC&Rs entitled “Amended and Fully Restated Declaration 

of Covenants Conditions, and Restrictions of the Subdivisions of Silverado West 

and Silverado East” (2015 CC&Rs). The Boumas did not agree to the new CC&Rs, 

however, they were signed by all other owners in the subdivisions. 

On January 19, 2017, the Boumas filed a complaint against the Association. 

They asserted that the 2015 CC&Rs violated chapter 64.38 RCW, exceeded the 

authority granted in the original covenants, and clouded their title to lot 8 Silverado 

East and lot 8 Silverado West. They requested quiet title for both lots 8 and 

declaratory relief that the 2015 CC&Rs were void and unenforceable. 

The Boumas then filed a motion for summary judgment on April 10, 2018, 

seeking to have the 2015 CC&Rs declared void in whole or in part. 
No. 80853-2-I/3

3

On July 12, 2018, the trial court denied the Boumas’ motion. The court held 

that the Association had the authority to adopt the 2015 CC&Rs and found the 

Boumas’ claims regarding specific provisions to be unpersuasive and 

unsupported. 

On January 10, 2019, the Association moved for summary judgment. On 

November 13, 2019, the trial court entered an order granting the motion and 

dismissing the Boumas’ claims with prejudice. On December 9, 2019, the 

Association filed a motion for attorney fees and costs. The trial court granted the 

motion, holding the Boumas were liable under RCW 68.38.050 and the 2015 

CC&Rs. 

The Boumas appeal. 

DISCUSSION

I. Competing Motions for Summary Judgment

This court reviews summary judgment rulings de novo, construing all facts 

and reasonable inferences from those facts in the light most favorable to the 

nonmoving party. Blue Diamond Grp., Inc. v. KB Seattle 1, Inc., 163 Wn. App. 

449, 453, 266 P.3d 881 (2011). A trial court must grant a motion for summary

judgment if there are no genuine issues of material fact and the moving party is 

entitled to judgment as a matter of law. CR 56(c). The moving party has the initial 

burden to show the absence of genuine issues of material fact. Blue Diamond, 

163 Wn. App. at 453.

This dispute involves two competing motions for summary judgment. The 

Boumas moved for summary judgment determining the 2015 CC&Rs were invalid. 
No. 80853-2-I/4

4

The trial court denied their motion.1 The Association then moved for summary 

judgment determining the CC&R amendments were valid, and the trial court issued 

an order granting their motion.2 By virtue of filing their motions seeking summary 

judgment each party asserted there were no disputes over material facts. Thus, 

our consideration of the two motions involves a single analysis limited to questions 

of law as to the adoption and meaning of the amendments.

The Boumas argue the trial court erred on several grounds in denying their 

motion for summary judgment. They further argue the court erred in granting the 

Association’s motion for summary judgment. These arguments are without merit.

A. Adoption of the 2015 CC&R Amendments

The CC&Rs governing both subdivisions created identical procedures for 

amendment, providing that they “may be amended in whole or in part signed by 

not less than Sixty percent (60%) of the owners of the lots affected by [the 

CC&Rs].”3 The Association properly followed the amendment process. The 2015 

 

1 The Boumas contend the trial court erred in denying summary judgment 

on specific provisions that they argued were unreasonable, because the 

Association did not submit specific facts in rebuttal. But, the motion posed legal 

rather than factual questions.

2 The Boumas argue it is improper to rely on the order denying the Boumas’ 

motion in ruling on the Association’s motion. Though the summary judgment 

motions were filed at separate times, the Boumas’ response to the Association’s 

motion for summary judgment listed the evidence they relied upon as “this brief, 

their brief in support of their earlier motion for summary judgment, the declaration 

of Gene Bouma, the second declaration of Gene Bouma, and all other pleadings 

and papers filed in this matter.” The response brief mirrored their arguments in 

support of their earlier motion, and all other evidence had been previously 

available. There were no questions of material fact. 

3 The Boumas and their company, Bouma Development, drafted the original 

CC&Rs and were involved in the previous amendments to the CC&Rs. The 

language that we are interpreting to determine whether the amendments are 

proper is language that was originally drafted and prepared by the Boumas.
No. 80853-2-I/5

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CC&Rs were signed by every owner in Silverado East and Silverado West aside 

from the Boumas, far surpassing the necessary 60% threshold. 

The Boumas argue even if the Association was authorized to amend the 

restrictive covenants, it was not authorized to adopt new restrictions. The trial 

court considered the language of the existing CC&Rs, including section 5.2 that 

provides “any amended or supplemental declaration shall be enforceable,” as 

evidencing the intent to allow new restrictions.

4

 We agree. 

Nonetheless, the Boumas contend the amendments were ineffective 

because their signatures were required. Absent their signatures, they argue the 

statue of frauds was violated. Under the statute of frauds for real estate, RCW 

64.04.010, “[e]very conveyance of real estate, or any interest therein, and every 

contract creating or evidencing any encumbrance upon real estate, shall be by 

 

4

In addition the trial court relied on section 3.3: 

The Court concludes that the covenants authorize the Association to 

adopt new restrictions. First, under paragraph 3.3, the covenants 

expressly provide for new restrictions, although in a technically 

infeasible way.

The Association may adopt bylaws and rules and 

regulations as it deems necessary or advisable for 

transaction of business. Such bylaws and rules and 

regulations are incorporated by reference as if fully set 

forth herein and each lot owner shall be required to 

abide by the rules and regulations.

(Restrictive Covenants ¶ 3.3) ([emphasis] added). The [emphasized] 

language attempts to merge restrictive covenants with bylaws and 

rules and regulations, which is problematic. But significant here is 

that the Developer intended the Association to adopt new bylaws and 

rules that would then have the force of restrictive covenants. This is 

clear evidence that the Developer intended the Association to adopt 

new restrictions as the residential development evolved. 
No. 80853-2-I/6

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deed.” Every deed “shall be in writing, signed by the party bound thereby, and 

acknowledged.” RCW 64.04.020. The Boumas rely on Bakke v. Columbia Valley 

Lumber Company, 49 Wn.2d 165, 169, 298 P.2d 849 (1956), for the assertion that 

their signatures had to be on the CC&Rs. But, that case concerned an easement, 

that was held to have been properly voided by the respondent wife, who had not 

signed the instrument. Id. at 170-71. The other cases relied upon by the Boumas 

to argue that the 2015 CC&Rs are invalid for failure to satisfy the statute of frauds 

are similarly inapplicable. They do not cite to any caselaw involving CC&Rs 

amended by a homeowners’ association following an expressly provided 

amendment process. This argument is without merit. 

We affirm the trial court’s conclusion that the Association had the authority 

to adopt the 2015 CC&Rs and that the amendment process was properly followed. 

B. Specific Provisions

Amendments to restrictive covenants in Washington are subject to an 

additional requirement, even where power is exercised consistently and 

reasonably, whether the restriction is new or merely modified. Wilkinson v. 

Chiwawa Cmtys. Ass’n, 180 Wn.2d 241, 256, 327 P.3d 614 (2014). The Supreme 

Court has held that “when the general plan of development permits a majority to 

change the covenants but not create new ones, a simple majority cannot add new 

restrictive covenants that are inconsistent with the general plan of development or 

have no relation to existing covenants.” Id. And, this court held in Shafer v. Board 

of Trustees of Sandy Hook Yacht Club Estates, Inc., 76 Wn. App. 267, 273-74, 

883 P.2d 1387 (1994), that “an express reservation of power authorizing less than
No. 80853-2-I/7

7

100 percent of property owners within a subdivision to adopt new restrictions 

respecting the use of privately owned property is valid, provided that such power 

is exercised in a reasonable manner consistent with the general plan of the 

development.”

The interpretation of language contained in a restrictive covenant is a 

question of law. Green v. Normandy Park Riviera Section Cmty. Club, Inc., 137 

Wn. App. 665, 681, 151 P.3d 1038 (2007). Restrictive covenants are interpreted 

to give effect to the intention of the parties to the agreement incorporating the 

covenants and to carry out the purpose for which they were created. Id. at 683. 

The Boumas assert that the amendments are not consistent with the 

general development plan and impose unreasonable disparate impacts on their 

property. The trial court addressed their challenges to individual sections of the 

amendments in its order denying summary judgment. It reasoned as follows:

The Boumas next contend that various specific provisions are 

unreasonable and conflict with the general plan of development. The 

Court finds these arguments unpersuasive as a matter of law.

1. Listing [Bouma Development] as Grantor

The Boumas argue that the 2015 covenants incorrectly list 

Gene Bouma Development, Inc. as a Grantor and Grantee for the 

recorded covenants, invalidating them. This is a scrivener’s error 

and does not invalidate the covenants. Because the Boumas own 

their lots subject to covenants their company recorded, and the 

Association properly adopted amendments to these covenants, their 

property remains bound. The legal description of the property, not 

the name of the owner in the recording summary, determines the 

covenant’s binding effect.
No. 80853-2-I/8

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2. References To The Common and Recreation Easement 

Areas

The Boumas assert that the Association attempted to turn an 

easement into fee ownership in the 2015 covenants. This is an 

unreasonable reading of one paragraph in the covenants and 

ignores references to the easement elsewhere. In paragraph 1.4.2, 

the 2015 covenants identify the “common areas” within Lot 8 of the 

Silverado East Plat and Lot 8 of the Silverado West Plat. The 

Boumas claim that the Association is trying to assert full ownership 

of the areas, rather than the easement that currently exists. 

According to the Boumas, “the easement areas are not ‘common 

areas’ or ‘common properties’ owned by the Association.” (Plaintiffs’ 

Motion for Summary Judgment at 6). In its Response and at oral 

argument, counsel for the Association confirmed that the Association 

does claim ownership of the property or anything other than the 

recorded easements. 

In the Plats for the Silverado East and West, the Developer 

conveyed over both Lots 8 “common and recreational easement area 

for the drainage, wells, and utilities purposes for both the Silverado 

West Plat and Silverado East Plat.” These are not simply utility 

easements but rather are both common and recreational areas for 

the developments. If the purpose of the easements is ambiguous, 

any uncertainty comes from the original plats, not the 2015 

covenants. The easement areas are listed as common areas, which 

the Association may use and must maintain.

Elsewhere in the 2015 covenants, the Association makes 

clear that it owns and maintains easements on Lot 8. (2015 

Restrictive Covenants ¶ 2.5) (“use the Lot 8 Common Areas as a 

common and recreational easement area”). This description 

duplicates that on the Plats. The court therefore finds no grounds to 

invalidate the references to the “common and recreational easement 

area” as a common area.

3. Paragraph 2.1, Reservation of Easements

The Boumas claim that paragraph 2.1 of the 2015 covenants 

“attempts to broadly combine all easements together for all purposes 

and broaden their scope overall.” (Plaintiffs’ Summary Judgment 

Motion at 7). In paragraph 2.1 the 2015 covenants identify the 

existence of easements “on the face of the Plat” and do not attempt 

to create or convey additional or expanded easements. The Court 

finds no grounds to invalidate this paragraph.
No. 80853-2-I/9

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4. Paragraph 2.3, Drainage Easement

The Boumas allege that Paragraph 2.3 creates drainage 

easements over any portion of any lot, outside the current areas set 

aside for the stormwater system and drainage. The Court agrees 

that the first sentence of paragraph 2.3 is broad in the abstract, but 

that any dispute over its meaning is hypothetical. The Boumas 

provide no evidence that the Association has attempted to create a 

drainage area or easement outside the current system, and without 

an actual justiciable dispute, the Court will not presume an invalid 

use of the covenant.

5. Paragraph 2.5, Lot 8 Common Areas

The Boumas argue that paragraph 2.5 of the 2015 covenants 

improperly expands the easements over Lots 8 to include “signage, 

lighting, and electrical purposes.” In the original covenants, the 

Association has responsibility to maintain and repair street lights and 

decorative lights located within common areas, and in each of the 

shared well agreements, the Association has authority to make 

emergency repairs to the water systems on Lots 8, including the 

pump houses. Furthermore, in sections 6 and 7 of the 2015 

covenants, the Association has responsibility to repair and maintain 

the water systems serving the various lots.

Maintenance implies both access and the ability to install 

necessary lights, signs and electrical systems. Like any grant of 

easement, however, the scope of the rights depend on the purpose 

of the easement. Since the Boumas provide no evidence that the 

Association has installed lights, signs or electrical systems unrelated 

to its maintenance obligations, the Court will not speculate on 

whether the Association has acted outside the scope of the 

easement grants.

6. Paragraph 3.2, Recreational Vehicles

The Boumas complain that the 2015 covenants restrict the 

ability of an owner to live in an RV [(recreational vehicle)] on a lot, “if 

it complied with the county codes.” (Plaintiffs’ Summary Judgment 

Motion at 12). Under paragraph 3.2 owners may keep RVs on their 

property as long as they are reasonably screened from view. The 

covenants limit out-of-county guests to a 6-week stay in an RV 

parked at an owners’ home. Because Silverado is a residential 

development, not an RV park, the Court fails to see how the 

restrictions on permanent RV living violates the general plan of 

development. There are no grounds to find it invalid. 
No. 80853-2-I/10

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7. Paragraph 3.4, Animals

The Boumas assert that Paragraph 3.4 of the 2015 covenants 

contain more extensive restrictions on animals that the original 

covenants. The original covenants banned keeping any livestock or 

poultry, but the Association later amended the covenants to allow the 

Boumas on Lot 8 “for personal use, hobby and activity raise and keep 

farm animals”. (2008 Amendment to ¶2.6). The 2015 covenants do 

not include this amendment, which is within the authority of the 

Association to approve or deny. If the Boumas want to keep farm 

animals on Lot 8, they should persuade their fellow owners to 

approve an amendment, as they did before. The Court finds no 

grounds to invalidate this covenant. 

8. Paragraphs 3.9 & 3.10, Fencing

The Boumas complain that the 2015 covenants impose 

restrictions that “are much more onerous and limit a lot of owner’s 

ability to use and fence their property how they choose.” (Plaintiffs’ 

Summary Judgment Motion at 13). The original covenants required 

Architectural Control Committee approval for any proposed fencing 

and limited an owner’s right to install fences of any height or 

composition. The 2015 covenants further refine these limits. This is 

no reason to invalidate the covenant. 

9. Paragraphs 3.12, 3.14, 3.15, 3.18, and 3.23

The Boumas raise general objections to use restrictions in 

section 3, arguing that [they] restrict the owners’ freedom to use their 

property how they choose. (Plaintiff’s Summary Judgment Motion at 

14). Yet that is the effect of a restrictive covenant. The Developer 

obtained plat approval for Silverado East and West—and sold the 

lots—based on this being a planned residential development, 

protected by a homeowners’ association. The fact that the 

Association now imposes restrictions that the Boumas do not like 

does not invalidate the plan of development or the Association’s 

authority. Like any owner in Silverado, the Boumas have the right 

and responsibility to participate in the Association by amending the 

covenants or assuring they are enforced fairly. The Court finds no 

grounds to invalidate these covenant sections.

10. Paragraphs 4.2.1, 4.2.3, and 4.5

The Boumas Object to restrictions on garages, outbuildings, 

and landscaping, arguing they are more detailed and restrictive. 

They also contend that even though a 2008 amendment placed 

restrictions on Lot 8 east, the 2015 covenants cannot place similar 
No. 80853-2-I/11

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restrictions on Lot 8 west. None of these arguments are persuasive 

or invalidate the respective covenants. 

11. Section 5, Architectural Control Committee

The Boumas complain that the 2015 covenants change the 

composition of the Architectural Control Committee [(ACC)] and 

expand its powers. Other than asserting that this is a fundamental 

change in the scheme of development, they do not prove how these 

changes are unreasonable or specify how they contradict the general 

plan of development. The purpose of an ACC is to assure that all 

construction contributes to, rather than detracts from, the harmony 

of the residential neighborhood. The Court finds no grounds to 

invalidate these amendments. 

12. Consolidating Maintenance [o]f [t]he Water Systems

The Boumas take issue with the owners’ desire to have the 

Association, rather than each lot owner, maintain the various shared 

wells serving the development. Much like individual owners hiring a 

company to service and maintain the wells, the owners can 

reasonably have the Association take responsibility for the system 

maintenance and assess themselves to pay for it. The Court finds 

these provisions reasonably adopted and consistent with the general 

plan of development. There are no grounds to invalidate them. 

13. Paragraph 6.3, Building on the Lot 8 Easement Areas

The Boumas object to the 2015 covenant provision that 

prohibits construction of any single family residence on the Lot 8 

common areas. In 2008, the Association amended paragraph 2.2 to 

prohibit building and “outbuilding on lot 8 . . . north of deer creek OR 

within 200 feet to the south of Deer Creek.” (2008 Amendment at 2). 

The Boumas did not object to this restriction and in fact recorded the 

amendment for the Association. Here the Boumas argue that the 

Association cannot unilaterally place such a restriction on the Bouma 

Lots. Because current easements over the Lot 8 common and 

recreational easement area most likely foreclose constructing any 

structures on the area, the Court declines to rule on this provision. 

Any dispute remains hypothetical. 

14. Section 7, Association Powers

Finally, the Boumas object to the expanded powers of the 

Association, worrying that it would “allow the Association to come 

onto any lot, anywhere, and do almost anything.” (Plaintiffs’ 

Summary Judgment Motion at 19). The Court disagrees. The 
No. 80853-2-I/12

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provisions in Section 7 are standard for homeowners’ associations 

under RCW 64.38.020, and permit the Association to fund its 

obligations under the covenants. In paragraph 3.2 of the original 

covenants, the Declarant provided “no diminution or abatement of 

assessments shall be claimed or allotted by reason of any alleged 

failure of the association to take some action or perform some 

function required to be taken or performed by the Association under 

this Declaration.” (Restrictive Covenants ¶ 3.2) (emphasis added). 

The ability to assess its members was implied. 

The Court finds no grounds to invalidate these covenant provisions.

(Last alteration in original.) 

We share the view of the trial court, that the Boumas failed to show as a 

matter of law that any portion of the amendments were inconsistent with the 

general development plan, imposed unreasonable disparate impacts on their 

property, or were otherwise invalid. 

We affirm the denial of summary judgment to the Boumas and the grant of 

summary judgment to the Association.

II. Attorney Fees and Costs

Finally, the Boumas argue the trial court awarded attorney fees and costs 

to the Association in error. They argue the Association filed an untimely motion, 

did not file a motion to enlarge time, it did not do so due to excusable neglect, and 

that there were no claims subject to the attorney fees provision in the 2015 CC&Rs. 

The issue of whether a party is entitled to fees is a question of law we review 

de novo. O’Neill v. City of Shoreline, 183 Wn. App. 15, 21, 332 P.3d 1099 (2014). 

The amount of an award of reasonable attorney fees is a matter within the trial 

court’s discretion. Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665 

(1987). A trial court abuses its discretion only when its decision is manifestly 
No. 80853-2-I/13

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unreasonable, or when its discretion is exercised on untenable grounds or for 

untenable reasons. TMT Bear Creek Shopping Ctr., Inc. v. PETCO Animal 

Supplies, Inc., 140 Wn. App. 191, 214, 165 P.3d 1271, (2007).

CR 54(d)(2) states,

Claims for attorneys’ fees and expenses, other than costs and 

disbursements, shall be made by motion unless the substantive law 

governing the action provides for the recovery of such fees and 

expenses as an element of damages to be proved at trial. Unless 

otherwise provided by statute or order of the court, the motion must 

be filed no later than 10 days after entry of judgment.

CR 6(b) provides procedures for enlarging the time specified in this rule. Where

the motion is made after the expiration of the temporal limitation, the court may 

“permit the act to be done where the failure to act was the result of excusable 

neglect.” CR 6(b)(2).

On November 13, 2019, the court filed the order granting summary 

judgment in favor of the Association. By this time, counsel of record for the 

Association had changed jobs. New counsel learned of the November 13, 2019 

order on November 20, 7 days after it was filed. The Association offered a 

declaration to this effect in support of its motion for attorney fees and costs. The 

Association filed its motion for attorney fees on December 9, 2019, 26 days after 

the summary judgment order.

The parties dispute whether the Association, as the prevailing party, had to 

file a motion for an award of attorney fees within 10 days in compliance with CR 

54(d). Our Supreme Court recently held that a summary judgment order resolving 

all substantive legal claims constitutes a “final judgment” pursuant to RAP 
No. 80853-2-I/14

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2.2(a)(1). Denney v. City of Richland, 195 Wn.2d 649, 651, 462 P.3d 842 (2020). 

Further, the Denney court reasoned that Washington courts have held a summary 

judgment order to be a final judgment despite later entry of a money judgment in 

previous cases. Id. at 656. It reasoned, an order granting summary judgment 

“falls within this court’s definition of final judgment.” Id. at 657. We hold the order 

granting summary judgment to the Association was a final judgment for the 

purposes of CR 54(d)(2).

A court may enlarge deadlines after they have passed only if the party’s 

lateness was the result of excusable neglect. Clipse v. Commercial Driver Servs., 

Inc., 189 Wn. App. 776, 787, 358 P.3d 464 (2015). The Boumas argue the 

“excusable neglect” exception is unavailable, because the Association never filed 

a motion to enlarge time under CrR 6(b). However, in Corey v. Pierce County, 154 

Wn. App. 752, 774, 225 P.3d 367 (2010), this court held that a party’s claim was 

barred by the 10 day filing limitation in CR 54(d) where she had not shown 

“excusable neglect or reason for delay” in filing for attorney fees, contemplating 

the standard absent a CR 6(b) motion. An attorney quitting because he changed 

jobs is outside of the Association’s control. The Association provided declarations 

to this effect demonstrating the reason for the delay. We hold the trial court’s 

decision to rule on the motion despite the delay was reasonable in light of showing 

of excusable neglect by the Association. 

The Association was awarded fees under RCW 64.38.050 and the 2015 

CC&Rs. The Boumas argue this is not an enforcement case, and therefore relief 
No. 80853-2-I/15

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under the CC&Rs is inappropriate.5 The Boumas rely on Meresse v. Stelma, 100 

Wn. App. 857, 999 P.2d 1267 (2000), to support their argument against a fee 

award. The Meresses, the original plaintiffs, alleged the subdivision owners had 

adopted amendments to the restrictive covenants that were invalid. Id. at 868-69. 

They sought attorney fees against their homeowners’ association. Id. They were 

not entitled to fees where the homeowners’ association exceeded its authority, but 

were not in violation of the instrument. Id. at 869. Nor was the homeowners’ 

association entitled to attorney fees where it was rightly challenged for exceeding 

its authority. Id. at 868-69. Meresse is distinguishable. The applicable attorney 

fee provision was narrower in Meresse.

The 2015 CC&Rs provide, “the prevailing party in any litigation involving the 

enforcement of any provision of this [2015 CC&R] shall be entitled to judgment and 

any remedy in law or equity . . . and for the reasonable attorneys’ fees and costs

incurred in such litigation but such prevailing party.” The Boumas argue that this 

is not an enforcement case, and therefore the court is unable to award attorney 

fees under this provision. But, the CC&Rs also say, “The provisions contained in 

[the CC&Rs] or any amended or supplemental declaration shall be enforceable by 

proceeding for prohibitive or mandatory injunction.” Bouma’s complaint sought 

declaratory relief. It sought enforcement of the preamendment CC&Rs. The trial 

 

5 The Boumas raise the issue of lack of claims subject to the provisions in 

the 2015 CC&Rs for the first time on appeal, which they acknowledge. This court 

may refuse to review any claim of error which was not raised in the trial court. RAP 

2.5(A). However, we may nonetheless address the issue if we so choose. Smith 

v. Shannon, 100 Wn.2d 26, 38, 666 P.2d 351 (1983).
No. 80853-2-I/16

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court did not err in concluding that the CC&Rs provide an appropriate basis to 

award fees. 

Chapter 64.38 RCW relates to homeowners’ associations. The Boumas’ 

motion for summary judgment sought a ruling, as a matter of law, that the 2015 

CC&Rs were invalid and unenforceable, brought pursuant to chapter 64.38 RCW. 

RCW 64.38.050 provides that “any violation of the provisions of this chapter 

entitles an aggrieved party to any remedy provided by law or in equity. The court, 

in an appropriate case, may award reasonable attorneys’ fees to the prevailing 

party.” Neither the Association nor the trial court identified a violation of the chapter 

by the Boumas in bringing their challenge to the amendments. An award of fees 

under the statute was error, but has no consequence given the award was also 

under the 2015 CC&Rs.

The Boumas further argue the trial court record does not support the 

attorney fees. The court held the Boumas were liable under the 2015 CC&Rs and 

RCW 64.38.050 in the amount of $32,434.50. The Boumas did not object to the 

hourly rate provided by the Association. The Boumas requested that the fees 

should “should be reduced by $1,066.00 for time spent on an unsuccessful motion 

to compel and $6,585.00 for time for [Brad] Swanson that it has failed to prove is 

reasonable.” They argued it was not clear that Swanson’s time was spent on work 

related to the lawsuit. The court awarded the amount requested by the 

Association. The Boumas do not demonstrate any abuse of discretion by the trial 

court regarding the amount awarded.
No. 80853-2-I/17

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The trial court did not err in the award of attorney fees.

We affirm.

WE CONCUR