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Jevne v. The Pass, LLC

Court of Appeals of Washington, Division 3

May 10, 2018

THE PASS, LLC, a Washington limited liability company, d/b/a The Pass Life, and BRYCE PHILLIPS and JANE DOE PHILLIPS, husband and wife and their marital community, Respondents.

          Korsmo, J.

         Darlene Jevne brought this action to assert the rights of her homeowners' association, even though that group did not authorize her to do so. Concluding that she lacked standing to pursue this case under these facts, we affirm, although on different grounds, the trial court's decision to dismiss the case on summary judgment.


         This litigation centers on residential developments at Snoqualmie Pass. Ms. Jevne is a resident of one such development, a planned unit development known as The Village at the Summit. Respondent is The Pass LLC, developer of a community adjacent to The Village. At issue is a surface water retention pond, allegedly belonging to the homeowners association (HOA) of The Village, but used by both The Village and The Pass.

         When The Village was platted in 1990 by Snoqualmie Summit Inn, Inc. (Snoqualmie), the property that Ms. Jevne ultimately acquired was listed as Lot 31. Across the street from Lot 31 is Tract A, the retention pond. Tract E on that plat map, a portion of The Village, was reserved for subsequent development. An easement granted Tract E the right to drain its surface water into Tract A. Snoqualmie subsequently sold Tract E to The Pass, which then began developing the property. Whether or not there are any individual property owners of lots within Tract E, and whether they or The Pass are also members of the HOA, is not clear in our record.[1]

         In 2013, operating with the permission of Snoqualmie, The Pass removed three trees from Tract A, ran a drain pipe into that lot, and made other efforts to improve the tract's ability to hold surface water. In the fall of 2014, Ms. Jevne purchased Lot 31 and became a member of the HOA. The following year, she filed the current action in her own name against The Pass LLC and its manager.

         The complaint alleged that the HOA owned Tract A and stated claims for damages and injunctive relief resulting from trespass, water drainage trespass, nuisance, and overburdening an easement. The complaint contained no allegations that Ms. Jevne had been authorized to sue on behalf of the HOA or that she had requested permission of the HOA to act. The Pass answered the complaint and alleged that Snoqualmie owned Tract A and that it had acted with permission of Snoqualmie. It also asserted that Ms. Jevne lacked standing to pursue the action.

         The Pass subsequently brought a motion to dismiss pursuant to CR 12(b)(6), [2]alleging that Ms. Jevne lacked standing for several reasons, including (1) neither Ms. Jevne nor the HOA owned Tract A, (2) Ms. Jevne did not allege any damage to her own property, and (3) Ms. Jevne acquired her land after the actions she complained about. Clerk's Papers (CP) at 231, 234. In response, Ms. Jevne claimed that Tract A had been conveyed to the HOA by the 1990 plat documents and that as a member of the HOA, she had a contingent interest in the property that gave her standing to act. CP at 18-27.

         Believing that there were unresolved factual questions that needed to be determined, the trial court denied the motion to dismiss and a subsequent motion for reconsideration. Several months later, respondents brought a motion for summary judgment on several theories. The trial court ultimately granted that motion and dismissed plaintiff's case.

         Ms. Jevne then appealed to this court from the summary judgment ruling. The Pass cross appealed from the denial of its motion to dismiss for lack of standing. The parties presented oral argument on the case.


         The sole issue we address is the dispositive matter of standing asserted in the cross appeal. Ms. Jevne failed to establish her authority to bring this suit.

         "Every action shall be prosecuted in the name of the real party in interest." CR 17(a). The purpose of this rule is to "'protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.'" Beal v. City of Seattle, 134 Wn.2d 769, 777, 954 P.2d 237 (1998) (quoting 3A James Wm. Moore, Moore's Federal Practice ¶ 17.01[8] (Daniel R. Coquillette et al. eds., 2d ed. 1996)).

         The issue of standing is reviewed de novo by appellate courts. Knight v. City of Yelm, 173 Wn.2d 325, 336, 267 P.3d 973 (2011). Standing is a jurisdictional concern that can be presented for the first time on appeal. RAP 2.5(a)(1); Int'l Ass'n of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d 207, 212-13 n.3, 45 P.3d 186 (2002). An appellate court can even raise the issue sua sponte. In re Recall of ...

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