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Parkshore Marina Association v. Gelissen

October 21, 1996

PARKSHORE MARINA ASSOCIATION, RESPONDENT,
v.
JOSEPH H. R. GELISSEN, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-2-27054-1. Date filed: 04/14/95. Judge signing: Hon. Liem E. Tuai.

Petition for Review Denied April 2, 1997,

Cox, J. WE Concur

The opinion of the court was delivered by: Cox

COX, J. -- Joseph H. R. Gelissen appeals two summary judgment orders in this foreclosure action. Because Gelissen failed to raise any genuine issues of material fact and Parkshore is entitled to judgment as a matter of law on both orders, we affirm.

In early 1979, Gelissen purchased a moorage slip in Parkshore Marina on Lake Washington. The slip consists of an undivided interest in Apartment I, which has 137 cotenants who share 137 storage lockers in the apartment. Millwood Development Corporation created the marina as a condominium in 1978 by recording the Condominium Declaration of Parkshore Marina (the Declaration). The Declaration assigns each cotenant exclusive use of a moorage slip and the adjacent finger pier. The cotenants also own an undivided interest in the common areas and other property.

At Parkshore's annual general meetings in 1990-1993, the board of directors of the condominium adopted schedules of maintenance fees to be apportioned pro rata among the owners. From December 1990 through September 1994, Parkshore invoiced Gelissen quarterly for his share of the common expenses. He made no payments.

Parkshore's board commenced this foreclosure action to enforce the liens created by the unpaid assessments. Gelissen answered the foreclosure complaint and asserted various affirmative defenses and counterclaims. Parkshore moved for summary judgment on its foreclosure complaint. Parkshore later moved for summary judgment on Gelissen's counterclaims. The trial court granted summary judgment to Parkshore on both motions.

Gelissen appeals both orders.

I

Foreclosure

Gelissen claims that the trial court erred by granting summary judgment on Parkshore's foreclosure complaint because the condominium was not legally created. Thus, he argues, Parkshore cannot assess maintenance fees. We disagree.

When we review an order granting summary judgment, we engage in the same inquiry as the trial court. *fn1 "All facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and all questions of law are reviewed de novo." *fn2 CR 56(c) directs the trial court to grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A material fact is one upon which the outcome of the litigation depends. *fn3 Summary judgment is not proper if reasonable minds could draw different Conclusions from undisputed facts or if all of the facts necessary to determine the issues are not present. *fn4 The moving party has the burden of proving that summary judgment is appropriate, but the nonmoving party "'may not rely on speculation [or] argumentative assertions that unresolved factual issues remain . . .'." *fn5 CR 56(e) requires that summary judgment "affidavits . . . be made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein." When a moving party properly supports her motion, the nonmoving party may not rely solely on her pleadings. Rather, that party's response to the motion "must set forth specific facts showing that there is a genuine issue for trial." *fn6 Gelissen's response to Parkshore's summary judgment motion on the foreclosure complaint fails to meet the evidentiary standard of CR 56(e). Moreover, it fails to create a genuine issue of material fact as to the status of the marina as a condominium. The record before us shows that the marina is a duly constituted condominium. Millwood Development Corporation recorded the Condominium Declaration in June 1978 under the horizontal property regimes act (HPRA). *fn7 On July 1, 1990, the Washington condominium act (WCA) *fn8 took effect. It supplements and modifies the HPRA, but only with respect to events occurring after that date. *fn9 The WCA does not invalidate or supersede provisions of the Declaration or bylaws that are inconsistent with the WCA but comply with the HPRA. *fn10 We conclude from our review of the Declaration and the relevant statutes that Parkshore is a validly constituted condominium.

Gelissen also claims that a tenancy in common does not comport with the requirements of the HPRA. He is mistaken. RCW 64.32.040 provides that "any apartment may be jointly or commonly owned by more than one person." Here, the Declaration defines "apartment owner" as the fee simple owner of an apartment "together with an undivided interest" in the common areas. The Declaration designates the ownership estate as a tenancy in common. Gelissen owns an undivided interest in Apartment I and an undivided interest in the common areas, all as provided in the Declaration and as required by the HPRA. *fn11 The designation of Gelissen's ownership interest as a tenancy in common does not violate the HPRA.

Gelissen challenges the authority of the Parkshore board to assess maintenance fees. We reject his challenge. The HPRA provides that a condominium declaration may provide for the assessment of common expenses chargeable to ...


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