### FILED Nov. 18,2014 In the Office oftheClerkofCourt W AStateCourtofAppeals, Division III

IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION THREE' CLUB ENWOF SPOKANE, LLC, a ) No. 

### 31913-0-111 Washington limited liability company; ) DAVID LARGENT, a married man dealing ) in his separate property; RIDPATH ) PENTHOUSE, LLC, a Washington limited ) liability company; 515 SPOKANE ) PARTNERS, LLC, a Nevada limited ) PUBLISHED OPINION liability company, ) ) Respondents, ) ) 

### v. ) ) THE RIDPATH TOWER CONDOMINIUM ) ASSOCIATION, aWashington non-profit ) corporation; RIDPATH REVIVAL, LLC, a ) Washington limited liability company; ) FEDERAL DEPOSIT INSURANCE ) CORPORATION, as Receiverfor Bank of ) Whitman, ) ) Appellants. ) BROWN, A.C.J.

- Today, we examine a dispute stemming from the 

### 2008 conversion ofSpokane's Ridpath Hotel into condominiums. Ridpath Revival, LLC (Revival) appealsthetrial court's summaryjudgmentdeclaration granting reliefto Club Envy of Spokane, LLC, David Largent, Ridpath Penthouse, LLC, and 515 SpokaneNo. 31913-0-111 Club EnvyofSpokane v. Ridpath TowerCondo. Assoc. Partners, LLC (collectively Club Envy). Club Envy asked the trial court to declarevoid a Second Amended and Restated Declaration ofCovenants, Conditions, and Restrictions (CCRs). Club Envy argued RCW 64.34.264 and 64.34.348 prohibited certain acts embodied in the second amended declaration taken bythe former officers and directors ofThe Ridpath Tower Condominium Association, and its president, Greg Jeffreys. Revival contends (1) Club Envy's action is barred by the statute of limitations, equitable estoppel, and laches; (2) genuine issues ofmaterial fact exist regarding whetherthe amended CCRs are void; (3) the courtwrongly dismissed all claims in summary judgment; and (4)judicial misconduct. We affirm. FACTS On February 20,2008, the Ridpath's owner, 515 Washvada Investments, LLC, created the Ridpath Tower Condominium. The tower became an 18-unit condominium complex and the Ridpath Tower Condominium Association was formed. The tower included common elements shared bythe owners. Thefirst amended declaration ofCCRs, recorded on June 12, 2008, divided Unit 18, spanning 12 floors, into Units 18 and 19. The second amended declaration, recorded on August 28,2008, divided Unit 18 into Units 18,20and 21. It lowered each association member's voting rights from 5.263 percentto 4.762 percent and converted
some common elements to private ownership. Both amendments were executed by Mr. Jeffreys. Mr. Jeffreys has since been convicted on a series offederal fraud charges unrelated to these transactions. Revival purchased Units 20 and 21, as well as Unit 3,



### 2No.**31913~0-1I1** Club EnvyofSpokane v. Ridpath TowerCondo. Assoc.
in January 2013. During discussions to purchase, no discussion took place regarding the validity ofthe second amended declaration. The majority ofowners desired to develop the Ridpath tower into**low~rent, micro~**  apartments. Revival, however, planned to develop rooftop Units 20 and 21 back into a lUXUry hotel. Club Envy sued for declaratory relief, requesting the court declare the second amended declaration void for lack ofproper approval by the requisite percentage ofcondominium members and terminate Revival's interests in Units 20 and 21. Club Envy additionally asked the courtto declare the use restriction in thefirst amended declaration does not prohibit rental of micro-apartments. Club Envy requested summaryjudgment on its requestfor declaratory relief. Revival filed a cross motion for summaryjudgment on the ground Club Envy's claims were barred as a matter oflaw by RCW 64.34.264(2)'s one-year statute of limitations. During the summaryjudgment hearing, the trial judge commented she previously had "a lot ofcases involving this sort ofthing with the same gentleman, with Mr. Jeffreys, and they're not normal ortypical. They're alljust like huge messes involving a lot ofpeople tragic a lot." Report of Proceedings (RP) at 65-66. Thejudgefurther stated, "Mr. Jeffreys

... has shown a lot of creativity thattakes all ofthese situations outside everything that a lot of us have seen before." RP at 71. Thejudge commented, "what if hypothetically, say, Mr. Jeffreys had some otherthings going on with this whole transaction thatwouldn't pass musterand we kept looking atwhat went on with this whole deaL" RP at 83.


### 3

# I 1
No. 31913-0-111 Club EnvyofSpokane v. Ridpath TowerCondo. Assoc. 

# I The court granted Club Envy's motion and denied Revival's motion. The court noted in its order, "There was some discussion atoral argument as to whetherthe granting of Plaintiffs' Motion for Summary Judgmentwould dispose ofthe case in total. The Court grants the motion as framed, and deems the matter resolved." Clerk's Papers (CP) at 607 n.1. Revival appealed. 1 ANALYSIS A. Revival's Defenses The issue is whetherthe trial court erred in denying Revival's request to summarily dismissing Club Envy's claims as time barred under RCW64.34.264(2), and/or under principles ofequitable estoppel or laches. We review a grant ofsummaryjudgment de novo, engaging in the same inquiry
as the trial court. Auto. United Trades Org. v. State, 175 Wn.2d 537,541,286 P.3d 377 (2012). Summaryjudgment is properwhen no genuine issues ofmaterial fact remain and the moving party is entitled tojudgment as a matter oflaw. CR 56(c); Huffv. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000). We construe facts and reasonable inferences from those facts in the light mostfavorable to the nonmoving party. Michak
v. Transnation Title Ins. Co., 148Wn.2d 788, 794, 64 P.3d 22 (2003). Summary judgment is appropriate ifreasonable persons could reach but one conclusion. Trimble
v. Wash. State Univ., 140Wn.2d 88, 93, 993 P.2d 259 (2000).

1 The Ridpath Tower Condominium Association and Federal Deposit Insurance Corporation were defendants belowwith Revival, but do notjoin Revival on appeal. 

### 4No. 31913-0-111 Club EnvyofSpokane 

### v. Ridpath TowerCondo. Assoc.
Statute ofLimitations. Whether a claim is time barred is a legal question we review de novo. Goodman v. Goodman, 128Wn.2d 366,373,907 P.2d 290 (1995). A statute of limitations is designed to protect individuals and courts from stale claims. Bums v. McClinton, 135Wn. App. 285, 293, 143 P.3d 630 (2006). A statutory period begins to run when the plaintiff's cause ofaction accrues. Malnarv. Carlson, 128 Wn.2d 521, 529, 910 P.2d 455 (1996). The Washington Condominium Act (WCA), chapter 64.34 RCW. was enacted in 1989 and governs condominiums created after July 1, 1990. RCW 64.34.010. The WCAestablishes the procedure bywhich condominium instruments may be amended and the procedure for challenging such amendments. RCW 64.34.264(2) provides. "No action to challenge the validity ofan amendment adoptedbythe associationpursuantto this section may be brought morethan one year afterthe amendment is recorded." (Emphasis added.) Thus, our question becomes whether all amendments must be challenged within one year or solelythose adopted bythe association underthe WCA. In interpreting a statute, we first look to its plain language. State v. Armendariz, 160 Wn.2d 106,110,156 P.3d 201 (2007). Ifthe plain language ofthe statute is unambiguous, our inquiry ends. Id. RCW 64.34.264(2)'s plain language states a challenge to an amendment "adopted by the association pursuant to this section" may not be brought more than one year after the amendment is recorded. RCW 64.34.264(2). Here, however, the parties contest whether a properly adopted amendment bythe association exists undertheWCA.



### 5No. 31913-0-111 Club EnvyofSpokane v. Ridpath Tower Condo. Assoc.
America Condominium Association, Inc. v. IDC, Inc., 844 A.2d 117, 133 

### (R.I. 2004) is instructive. There, the Rhode Island Supreme Court analyzed a similarstatute and held the one-year limitation did not apply. The statute stated, "No action to challenge the validity ofan amendment adoptedbythe associationpursuantto this section may be brought more than one year afterthe amendment is recorded." 

### R.1. GEN. LAws 

### § 34-36.1-2.17(b) (1956) (emphasis added). The plaintiffs in American Condominium brought a suit challenging the voting procedure employed to extend development rights and, consequently, argued the amendments extending those rights
were invalid. The court held, u[Wjhen, as here, the amendment being challenged is determined to be void ab initio, the one-year statute of limitations does not apply to any subsequent action taken by an interested party
... the hearing justice did not err in rejecting defendants' statute of limitations defense." Am. Condo. Ass'n, 844 A.2d at 133. Washington courts have not specifically addressed this issue. But, in Kellerv. Sixty-01 Associates ofApartment Owners, 127Wn. App. 614, 621, 112 P.3d 544 (2005), the defendants raised a timeliness defense. In remanding the matter on another issue, Division One ofthis court noted, "the trial court must determine on remand whetherthe 1992 amendmentwas properly adopted

.... If it was void, the Board's action in 1999 is inconsequential andthis issue is moot." In otherwords, ifthe amendmentwas void from its inception because itwas not "adoptedby the association



### 6No. 31913-0-111 Club EnvyofSpokane v. Ridpath TowerCondo. Assoc. pursuantto this section"then RCW64.34.264(2)'s time limitation does not apply. (Emphasis added.) Based on both American CondominiumAssociation and Keller, and the plain meaning of RCW 64.34.264(2), Club Envy's challenge to the validity ofthe amendment
as not being properly passed bythe association pursuant to the WCA is not barred by RCW 64.34.264(2)'s one-year limitation. Equitable Estoppel/Laches. The action is not barred by the doctrines ofequitable estoppel and laches. A party asserting an equitable remedy has the burden to prove the requirements ofthat remedy. See King County v. Taxpayers ofKing County, 133 Wn.2d 584, 642, 949 P.2d 1260 (1997) (party asserting equitable defense of laches has burden of proof); Tellerv. APM Terminals Pac., Ltd., 134Wn. App. 696, 712, 142 P.3d 179 (2006) (party asserting equitable estoppel must prove each ofits elements by clear, cogent, and convincing evidence). Revival argues Club Envy is estopped from challenging the second amended declaration. The elements ofequitable estoppel are U(1) [a]n admission, statement, or act inconsistent with the claim afterwards asserted; (2) action by the other party on the faith ofsuch admission, statement or act; and (3) injuryto such other party from allowing the first party to contradict or repudiate such admission, statement, or act." Finch v. Matthews, 74 Wn.2d 161, 171 n.3, 443 P.2d 833 (1968). This doctrine is not favored and must be proved by clear, cogent, and convincing evidence. Robinson v. CityofSeatt/e, 119Wn.2d 34, 82, 830 P.2d 318 {1992}.

7No. 31913-0-111 Club EnvyofSpokane v. Ridpath Tower Condo. Assoc.
The parties focus on element two; the reliance element. Revival claims it relied
on some ofthe condominium owners' silence. "Estoppel by silence does not arise without full knowledge ofthe facts and a duty to speak on the part ofthe person against whom it is claimed." Codd v. FestchesterFire Ins. Co., 14 Wn.2d 600, 606, 128 P.2d 968 (1942). "'Full knowledge ofthe facts is essential to create an estoppel by silence or acquiescence.'" Id. at 607(quoting Blanck v. PioneerMining Co., 93 Wash. 26, 34, 259 P. 1077 (1916). "Mere silence, without positive acts, to effect an estoppel, must have operated as afraud, must have been intended to mislead, and itself must have actually misled. The party keeping silent must have known or had reasonable grounds for believing that the other party would rely and act upon his silence." Id. The neighbors of
a seller have no obligation to disclose facts to a prospective buyer. Revival's founder, Arthur Coffey, declared he metwith three condominium
owners and they did not mention, "the Second Amended Declaration was notvalid or that Units 20 or21 were improperly created or subdivided." CP at 508. This is consistent with these owner's declarations that they were not aware ofthe amendment. Underthe clear language of Codd, this is not enough to satisfy elementtwo ofan equitable estoppel claim. Moreover, no evidence in our record shows Revival relied on these conversations to confirm title and proceed with its purchase. Instead, the evidence on our record shows Revival relied on the title insurance company to provide title information. Revival dealt directly with Mr. Jeffreys not Club Envy. Assertions that association members were aware ofthe invalidity ofthe second amended declaration

8No. 31913-0-111 Club EnvyofSpokane v. Ridpath TowerCondo. Assoc.
and chose to remain silent are, at best, speculative. Elements established byvirtue of speculation or conjecture are insufficientto warrant estoppel. Pub. Uti!. Dist. No. 1 of Doug/as Countyv. Cooper, 69 Wn.2d 909, 918,421 P.2d 1002 (1966). Without a showing ofall elements, Revival's estoppel argumentfails. Next, Revival argues the doctrine of laches prevents Club Envy from challenging the second amended declaration. Laches is an equitable defense involving, "(1) knowledge or reasonable opportunity to discover on the part ofa potential plaintiffthat he [or she] has a cause ofaction againsta defendant; (2) an unreasonable delay bythe plaintiff in commencing that cause ofaction; [and] (3) damageto defendant resulting from the unreasonable delay.'" Citizens forResponsible Gov't v. Kitsap County, 52 Wn. App. 236, 240, 758 P.2d 1009 (1988) (quoting Buell v. CityofBremerton, 80Wn.2d 518,522,495 P.2d 1358 (1972)). Revival fails to show Club Envy was aware of its rights and sat on them for an "unreasonable" amount oftime. Citizens forResponsible Gov't, 52 Wn. App. at240. Mr. Coffey's testimony is that he metwith various association members to discuss ownership before he purchased Units 20 and 21. Nothing indicatesthe association members were awarethe second amended declaration was void orthat iteven existed. While Revival may be able to show damages, withoutthe other elements ofa laches defense, Revival's claim mustfail. Accordingly, Revival cannot avail itselfofa laches defense underthe circumstances presented here.



### 9No. 31913-0-111 Club EnvyofSpokane v. Ridpath TowerCondo. Assoc.

B. Summary Judgment The issue is whetherthe trial court erred in summarily declaring the second amended declaration void and dismissing all claims. Revival contends either reasonable minds could solely find in its favor, orgenuine issues ofmaterial fact remain to preclude summaryjudgment. "A condominium declaration is like a deed, the review ofwhich is a mixed question of law and fact." Lake v. WoodcreekHomeownersAss'n, 169Wn.2d 516, 526, 243 P.3d 1283 (2010). Thefactual issue is the declarant's intent that we discern from the face ofthe declaration; the declaration's legal consequences are questions oflaw
we review de novo. Id. A condominium declaration is a document unilaterally creating a type of real property. Bellevue Pac. Ctr. Condo. OwnersAss'n v. Bellevue Pac. Tower Condo. Ass'n, 124Wn. App. 178, 188,100 P.3d 832 (2004). A declaration can solely be amended by compliance with theWCA. Id. A condominium association board of directors may not amend a declaration, solely the unit owners may do so. RCW 64.34.264; RCW64.34.308(2}. General amendments may be enacted solely by a vote or agreement of67 percent ofthe votes allocated in the association, or any larger percentage the declaration specifies. RCW 64.34.264(1}. Here, the original declaration states, to amend a declaration it must be approved by "at least ninety percent (90%) ofall the

10No. 31913-0-111 Club EnvyofSpokane v. Ridpath Tower Condo. Assoc. Voting Interests." CP at 58. And, "[a] certificate, signed and sworn to by two (2) officers ofthe Association, thatthe record Owners ofthe required numberof Units (and the required numberoffirst mortgagees, where applicable) have eithervoted for or consented in writing to any amendment." CP at 58. Additionally, RCW64.34.264(4) expressly forbids amendments that "may create
or increase special declarant rights, increasethe numberof units, change the boundaries of any unit, the allocated interests ofa unit, orthe uses to which any unit is restricted" without the vote of"the owner ofeach unit particularly affected." Becausethe second amendment changed the voting interests ofall the members it had to be approved by all the owners. Thus, the second amended declaration was not allowed under RCW64.34.264(4). Here, Club Envy submitted several declarations by condominium owners indicating they did notapprovethe change. The sole evidence to the contrarywas an
unsworn certificate attached tothe second amendment by Mr. Jeffreys and another
owner. This unsworn certificate alone is insufficientto meetthe requirements of RCW 64.34.264(1); it is further insufficientto create a genuine issue of materialfactwhere
none exists. A party opposing summaryjudgment "may not rely merely upon allegations or self-serving statements, but must setforth specific facts showing that genuine issues ofmaterial fact exist." Newton Ins. Agency& Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 157,52 P.3d 30 (2002).

11No. 31913-0-111 Club EnvyofSpokane v. Ridpath TowerCondo. Assoc.
The record shows the second amended declaration (which created more units, lowered each unitowner's voting rights, and converted some common elements to private ownership) was not passed by all members as statutorily required. Accordingly, the second amended declaration was void ab initio; the trial court properly granted Club Envy's motion for summaryjudgment, declaring the declaration as such. Because the second amended declaration was void, the trial court properly dismissed Club Envy's other claims relating to application ofsecond amended declaration's voting rights to terms in the first amended declaration. Club Envy acquiesces indicating "resolving the validity ofthe Second Amended Declaration created an entire resolution to the matter." Resp't Br. at 38. C. Judicial MisconductAllegation The issue is whetherthe trial court's summaryjudgment order should be vacated based on judicial misconduct. Revival contends thejudge should have recused herself because her prior knowledge of Mr. Jeffreys caused "actual or apparent unfairness and bias." Appellant's Br. at 2. This issue is raised forthefirst time on appeal. Because an appearance offairness claim is not a "constitutional" claim pursuantto RAP 2.5(a)(3),
we will generally not consider it for the first time on appeal. State v. Morgensen, 148 Wn. App. 81, 90-91,197 P.3d 715 (2008). In any event, to prevail on an appearance offairness claim, Revival must present evidence ofactual or potential bias. State v. Post, 118 Wn.2d 596,618-19,826 P.2d 172,837 P.2d 599 (1992). The "critical concern in determining whether a proceeding

12No. 31913-0-111 Club EnvyofSpokane v. Ridpath TowerCondo. Assoc.
satisfies the appearance offairness doctrine is how it would appearto a reasonably prudent and disinterested person." Chi., Milwaukee, St. Paul. 

### & Pac. 

### R.R. Co. v. Wash. State Human Rights Comm'n, 87 Wn.2d 802,810,557 P.2d 307 (1976). We presume trialjudges perform theirfunctions regularly and properly, without prejudice or bias. Jones v. Halvorson-Berg, 69Wn. App. 117, 127,847 P.2d 945 (1993). Here, thejudge's comments noted in the facts section showthejudge was familiarwith Mr. Jeffreys, they do not show actual or potential bias against Revival. Indeed, many parties are repeatedly before the samejudge, butthat alone does not violate the appearance offairness doctrine. See State v. Leon, 133 Wn. App. 810, 812, 138 P.3d 159 (2006) (frequency ofappearance before ajudge does not, without more, create an appearance of partiality that requires recusal from a matter). Affirmed.

WE CONCUR: 

# c,
Lawerence-Berrey, J.

13