COURT Or APPEALS Div
... STATE OF WASHINGTON 2013 HAY 20 AH 9= II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GLORIA HOLCOMB, a single person, Appellant,

v. TAREE COMMUNITY ASSOCIATION, a Washington nonprofit corporation acting through its Architectural Control Committee; and MORRIS MOSER, Chairman ofthe Association's Architectural Control Committee, Respondents. No. 69370-1-

DIVISION ONE

UNPUBLISHED OPINION
FILED: May 20, 2013
PER CURIAM. On remand from our decision in Holcomb v. Taree Community 

### Association, noted at 152Wn. App. 1065 (2009) (Holcomb I), the trial court found that 

### Taree CommunityAssociation (Taree) hadunreasonably delayedapproval ofGloria Holcomb's home construction plans, but that the delay did not cause any 

### compensable damages. Holcomb appealed, and Tareefiled a motion on themerits to affirm. RAP 18.14(a).1 Because Holcomb's appeal isclearlywithout merit, we grantTaree's motion and affirm the trial court judgment. Holcomb filed this action alleging that the Taree architectural control



### 1Holcomb originallyfiled herappeal in Division Two ofthis court, where acommissioner granted Taree'smotion on themerits toaffirm. Apanel ofjudgesmodifiedthe commissioner's ruling andtransferred theappeal, including Taree's motion on themerits, to Division One. In Division One, by general order, a motion on themerits isheard by a panel ofjudgeswithout oral argument unless the courtordersotherwise.No. 69370-1-1/2
committee (ACC) had breached its covenants when itunreasonably delayed communicating its approval of her home construction plans. The trial court entered a decision in favor ofTaree. Holcomb appealed. This court reversed and remanded the case to the trial court "to determine whether the ACC unreasonably delayed approval of Holcomb's plans and the amount ofdamages that naturally flowed from the ACC's refusal to approve Holcomb's construction application." Holcomb v. Taree Community Association, noted at 152 Wn. App. 1065 (2009) (Holcomb I). 2009 WL 3737008, at *8. 

### A different judge conducted a bench trial on remand. The court concluded that the ACC's delay in providing written approval was unreasonable. The court found 

### that the delay had caused damages of$42,334.98 forseptic re-design fees, architect's fees, and building permit fees. But the court concluded that Holcomb had 

### mitigated any damages from the delay byselling the lotfor a netprofit of $90,653.02 and awarded no damages. The court denied Holcomb's motion for a new trial or reconsideration. 

### This courtwill grant a motion on the merits to affirm in whole orin part "ifthe appeal or any part thereofis determined to be clearly withoutmerit." RAP 18.14(e)(1). In making this determination, the court considers "all relevant factors 

### including whether the issues on review (a) are clearly controlled by settled law, (b) are factual and supported by the evidence, or (c) are matters ofjudicial discretion andNo. 69370-1-1/3 the decision was clearly within the discretion ofthe trial court." jd. On appeal, Holcomb makes the following assignments of error: 1. The trial court erred in entering findings offact that were not supported by substantial evidence. 2. The trial court erred in its determination of Holcomb's damages. Conclusion of Law No. 2 erroneously calculates certain damages and Conclusion of Law No. 3 is erroneously based on Findings of Fact that are not supported by substantial evidence. 3. The trial court erred in entering Conclusions of Law No. 4 and 5, 

### offsetting Holcomb's damages against profitshe earned on the sale of her property. 

### 4. Thetrial court erred in notgranting a newtrial orreconsideration.2 As the appellant, Holcomb bears the burden "of perfecting the record so that this court has before it all ofthe evidence relevant to the issue." Allmeierv. 

### University ofWashington, 42 Wn. App. 465, 472, 712 P.2d 76 (1984). "A party 

### should arrange for the transcription ofall those portions of the verbatim report of 

### proceedings necessary to present the issues raised on review." RAP 9.2(b). In support of her appeal, Holcomb transferred the verbatim report of proceedings from Holcomb I. but failed to provide any transcripts ofthe trial on remand. 

### Holcomb's primary contention on appeal is that the evidence before the trial court on remand was insufficient to support the court's relevantfindings of fact on 

### damages. In particular, she challenges findings of fact 8, 13, 16, 17, 18, 19, 21, 22,

Br. ofApp. at 2-3.No. 69370-1-1/4
23, 24, 25, and 31. But in making these findings, the trial court considered not only Holcomb's testimony during the first trial, but also her testimony and supporting evidence on damages during the second trial. Holcomb's failure to provide a verbatim report ofproceedings from the second trial precludes any meaningful review ofher claim that the evidence failed to support the challenged findings. "The findings of fact are thus verities and binding upon this court." Morris v. Woodside. 101 Wn.2d 812, 815, 682 P.2d 905 (1984). Consequently, our review is limited to determining 

### whetherthose findings support the conclusions of law. See Happy Bunch, LLC v. Granview North. LLC. 142 Wn. App. 81, 88 n.1, 173 P.3d 959 (2007). 

### Holcomb's challenge to conclusions of law 2, 3, 4, and 5, which setforth the trialcourt's determination ofdamages resulting fromTaree's delay in approving her 

### construction plans, rests solely on her claim that the evidence was insufficientto 

### support the relevantfindings. Her challenge is therefore unreviewable. The trial court's findings of fact amply support the calculation ofdamages. We also decline Holcomb's invitation to review the trial court's credibility determinations. See State v. 

### Walton. 64 Wn. App.410, 415-16, 824 P.2d 533 (1992) (appellate court defers to the trier of fact on issues ofconflicting testimony, credibility ofwitnesses, and the persuasiveness of the evidence). Holcomb contends that no verbatim report ofthe second trial was necessary 

### because her testimony and the testimony of others about herdamages at the firstNo. 69370-1-1/5

trial was "uncontradicted." She further maintains that the court on remand should not have permitted additional evidence on those damages and that the court's findings
on damages were inconsistent with this court's decision in Holcomb I. Contrary to Holcomb's contentions, however, Holcomb Idid not direct the trial court to award damages based on Holcomb's testimony in the first trial. Rather, the court's analysis in Holcomb Iidentified the types ofdamages that were compensable, ifproven, and then remanded to the trial court to determine (1) whether the ACC unreasonably delayed approving Holcomb's plans and (2) the amount ofdamages flowing from that delay. Nothing in this court's remand precluded the trial courtfrom considering additional evidence or making its own credibility assessments. Holcomb's conclusory allegations to the contrary are meritless. 

### The lack of a sufficient appellate record also defeats Holcomb's claimthatthe trial court erred in denying her motion for reconsideration. Holcomb sought 

### reconsideration based on CR 59(a)(3) (surprise), CR 59(a)(7) (no evidence to justify decision or decision is contrary to law), and CR 59(a)(9) (substantialjustice has not been done). We review the trialcourt's decision on a motion for reconsideration or for a new trial for an abuse ofdiscretion. Aluminum Co. ofAm. v. Aetna Cas. & Sur. Co.. 140 Wn.2d 517, 537, 998 P.2d 856 (2000). 

### Holcomb's arguments on reconsideration are again directed primarily to disputing the trialcourt's findings of fact and conclusions of law. Forthe reasons set

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forth above, the record is insufficient to permit meaningful review. Accordingly, Holcomb has failed to demonstrate any abuse ofdiscretion. 

### In summary, on the record before us, Holcomb's challenge to the trial court's findings of fact and conclusions of law is clearly without merit. Taree's motion on the merits is granted, and the trial court'sjudgment is affirmed.