Appeal from Superior Court of Whatcom County. Docket No: 94-2-00759-5. Date filed: 02/03/95. Judge signing: Hon. Michael F. Moynihan.
Authored by H. Joseph Coleman. Concurring: Faye C. Kennedy, Ronald E. Cox.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- The owner of a residential subdivision sued one of its lot owners to recover dues for the upkeep of common areas and utilities. Eugene and Roberta Kalaman claim that the lower court erred in granting summary judgment to the Glen Community Ass'n (GCA) because the Kalamans disputed the amount they owed. The Kalamans also claim that the GCA failed to follow corporate formalities in levying the assessments and filing a lien against their property. Finally, the Kalamans argue that an award of attorney fees and costs to the GCA was unreasonable. The GCA cross-appeals that portion of the trial court's judgment that refused to include postjudgment assessments in the lien amount. We affirm the judgment because no material factual issues exist. But because the court below improperly included power charges in the GCA's lien, we modify the lien amount.
The GCA is a nonprofit Washington corporation that manages a recreational subdivision called "The Glen at Maple Falls." In addition to individually owned lots, the subdivision contains a number of common areas, including parks, wooded areas, clubhouses, tennis courts, swimming pools, and hiking trails.
The Kalamans purchased lot 48 at The Glen on May 4, 1977. The property is subject to a formal Declaration of Covenants, Conditions, and Restrictions (the CCR). Article 9 provides that each lot owner's right to use the common areas is subject to the GCA bylaws and regulations and obligates each lot owner to pay a monthly assessment for common area maintenance costs.
The GCA bylaws also provide for assessments against lot owners. Article 7 mandates that each year, the Board of Directors shall fix by resolution the amount of an annual assessment to be levied against each lot. The Board has the power to increase the annual assessment amount to cover expenses of paying real estate taxes, utility bills, "and all other similar direct operating expenses related to the operation and reasonable maintenance of the common areas and improvements thereon."
The bylaws further provide that the annual assessment amount, plus interest and cost of collection (including attorney fees), shall become a lien on the lot when a notice of assessment is recorded in the county recorder's office. The notice is to be signed by the GCA secretary or other person designated by Board resolution. Written notice of each annual assessment must be mailed by the secretary before the assessment becomes due and payable.
The GCA has traditionally billed the annual assessments in quarterly installments. The GCA also bills lot owners quarterly for the power that each uses. The GCA's manager, Herman Schoen, prepared and mailed the billing statements and notices at issue here. With one exception, the Kalamans regularly paid their assessments and power bills until the fourth quarter of 1993. The GCA received no payments thereafter. The reason for the Kalamans' delinquency is disputed. The Kalamans claim that they notified the GCA of an address change on August 6, 1993. TheGCA claims that they never received the address change notice and thus continued to mail notices to the Kalamans' old address. The GCA eventually received notice of the Kalamans' new address on or about January 9, 1994. Schoen then sent the Kalamans a letter requesting them to sign an arrears agreement, but the Kalamans did not respond.
Eugene Kalaman called Schoen on April 2, 1994, to discuss his account, claiming he had not heard from the GCA. Kalaman disputed the amount claimed by the GCA, particularly a $178.31 charge for power usage. On April 5, 1994, the GCA recorded a notice of claim for a lien against the Kalamans' property for delinquent and future unpaid assessments and other costs. On May 4, 1994, the GCA filed this action in Whatcom County Superior Court for unpaid assessments and lien foreclosure.
On February 3, 1995, the court granted the GCA's motion for summary judgment, awarding judgment for $955.52. The court also awarded the GCA $614.30 in costs and $3,243 in attorney fees. The judgment of foreclosure provided that sale proceeds would be applied to satisfy all assessments and costs through December 1994.
The Kalamans claim that the lower court improperly weighed the evidence to resolve genuine issues of material fact. Specifically, they claim that the validity of the GCA's actions under the bylaws and the amount of their debt involve material fact issues. Because the Kalamans failed to rebut the GCA's showing that they defaulted on their assessments, we affirm the grant of summary judgment to the GCA.
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982). When reviewing a grant of summary judgment, we engage in the same inquiry as the trial court. Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 811, 828 P.2d 549 (1992). Namely, we make all reasonable inferences from the record in the light most ...