Opinion
No. 53077-1-I
Filed: December 13, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-2-22397-6. Judgment or order under review. Date filed: 09/09/2003. Judge signing: Hon. William L Downing.
Counsel for Appellant(s), Tucker F Blair, Blair Meeker LLP, 2505 2nd Ave Ste 500, Seattle, WA 98121-1452.
Counsel for Respondent(s), Deborah Lynn Carstens, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Jerret E. Sale, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
When the deck attached to unit 122 of the Hawthorne Square condominiums was torn down, the Declaration and Covenants, Conditions, Restrictions and Reservations for Hawthorne Square stated that the cost to replace the deck should be charged to all apartment owners as a common expense. But the Hawthorne Square Association did not pay. Years later, the Association sued the owner of unit 122 Jaineen Bloss for unpaid condominium assessments. Jaineen counterclaimed to have the Association pay for a new deck, and this counterclaim was the only issue that went to trial. After a bench trial, the court barred Jaineen's counterclaim on the grounds of waiver, the doctrine of laches, and equitable estoppel. Jaineen appeals the trial court's judgment, findings of fact and conclusions of law, and denial of her motion for reconsideration. Because we do not find any intentional act to signal waiver, damage to the Association resulting from Jaineen's delay necessary for the doctrine of laches, or detrimental reliance necessary for equitable estoppel, we reverse and remand.
I.
The trial judge in his findings of fact and conclusions of law explained that `[t]his proceeding arose from the ashes of another and more substantial dispute between the parties.' The original litigation between Jaineen Bloss and the Hawthorne Square Condominium Association concerned the habitability of Jaineen's unit, and was resolved by settlement. But as the parties neared the end of their negotiations, they discovered they still disagreed about who should pay `for replacement of the outdoor deck attached to the condominium unit owned by Ms. Bloss.' The Association fulfilled its obligations under the settlement agreement, but Jaineen did not reoccupy the unit nor did she resume making her required payments. The Association sued Jaineen for unpaid condominium assessments. Jaineen filed a counterclaim. The court granted partial summary judgment dismissing all counterclaims except for deck issues. The court also denied a motion for summary judgment on all remaining counterclaims (deck issues). On the same day, the court granted summary judgment on the Association's claim for unpaid assessments. The court denied two more motions for summary or partial summary judgment, and the case proceeded to trial without a jury on the issue of the deck replacement.
Following the bench trial, the court made the following findings of fact. Three sisters, Joleen, Jerrilin, and Jaineen Bloss, inherited ownership of four units within the Hawthorne Square Condominiums. Originally, Joleen looked after the ownership interest of the three sisters and became a member of the board of directors of the homeowners association in February of 1991 and remained on the board until July of 1993.
During Joleen's tenure on the board, the board addressed the need to re-roof the leaking garages. To complete this project, two decks that sat on top of the garages needed to be demolished. The decks were attached to units 120 and 122, owned by Bruce King and the Bloss sisters, respectively. The Condominium Declaration then in effect defined the `balcony attached to Apartment 122' and the `balcony which is attached to apartment 120' as `limited common areas.' Section 16.3 of the Declaration provided that `[a]ll maintenance, repairs, and replacements to the common areas and limited common areas . . . shall be made by the Board of Directors and be charged to all apartment owners as a common expense. . . .'
The trial court also found that the condition of the decks at the time of demolition was poor. The trial court noted that `[t]he contractor who removed them in the fall of 1994 described them as having initially been `haphazardly put together' with inferior materials and having since fallen prey to rot and insect infestation.' The court further noted that `[a]ny sensible owner, one must conclude, would have desired not simply their replacement but an upgrade in design, the quality of workmanship and materials and, perhaps, an increase in their dimensions.'
The trial court also found that King `readily concluded that he should personally assume financial responsibility for the replacement of his deck rather than press for this as a common expense under secion 16.3, an argument he saw as `counterintuitive' and `not right.'' The understanding he reached with the board allowed him to improve his deck while the Association, as part of the garage roofing project, bore the cost of removal of the old deck and the placing of new deck supports.
The board's meeting minutes clearly and repeatedly reflect its position that the owners of the affected units would bear the cost of replacement. The court found that `[a]lthough there is no express record of agreement by Joleen Bloss, such agreement is clearly inferable and there is no credible evidence to the contrary.'
In July 1993, Joleen Bloss requested approval from the Board to allow her to extend her unit's deck to cover the full area of the garage on which it would sit. She did not pursue this request to its conclusion.
Before the garage roofing project began, Jaineen's two sisters quitclaimed their interest to her in unit 122. Joleen advised Jaineen of the Board's position that the Association would pay for the removal of the old deck and the placement of the structural supports, but she would be responsible for the construction of the new deck.
The garage roofing began in the fall of 1994 and soon after, in November, Jaineen and her husband moved into unit 122. In the following months and years, no formal request was made to the Board for reconstruction of the deck attached to unit 122 either at common expense or at the owner's expense. Opportunities were lost to complete the deck construction in conjunction with other construction projects. At all times, the Association based its budgetary planning on its position that the owners' would pay for the deck replacements.
Based on these findings, the court concluded that Jaineen was barred from seeking replacement of the deck at common expense on the grounds of waiver, laches, and equitable estoppel.
II.
`Where the trial court has weighed the evidence [we limit our review] to determining whether the findings are supported by substantial evidence and, if so, whether the findings in turn support the trial court's conclusions of law and judgment.' `Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.' Whether or not the court should imply waiver of a contractual right is a mixed question of law and fact. We review a trial court's determination of waiver de novo, applying the legal test for waiver to the facts. And we review a trial court's exercise of equitable powers such as equitable estoppel or the doctrine of laches for an abuse of discretion. First, Jaineen argues that the trial court erred by concluding that she waived her right to have the Association replace the deck. Waiver is the intentional and voluntary relinquishment of a known right, or conduct from which the intent to relinquish the right may be inferred. A waiver `may result from an express agreement or be inferred from circumstances indicating an intent to waive.' "To constitute implied waiver, there must exist unequivocal acts or conduct evidencing an intent to waive; waiver will not be inferred from doubtful or ambiguous factors." The party asserting waiver bears the burden of proving the intention to relinquish a right.
Holland v. Boeing Co., 90 Wn.2d 384, 390, 583 P.2d 621 (1978).
Holland, 90 Wn.2d at 390-391.
Reynolds Metals Co. v. Electric Smith Const. Equip. Co., 4 Wn. App. 695, 700, 483 P.2d 880 (1971).
Steele v. Lundgren, 85 Wn. App. 845, 850, 935 P.2d 671 (1997).
In re Marriage of Watkins, 42 Wn. App. 371, 375, 710 P.2d 819 (1985); Ford v. Bellingham-Whatcom County Dist. Bd. of Health, 16 Wn. App. 709, 715, 558 P.2d 821 (1977).
Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 (1954).
Bowman, 44 Wn.2d at 669.
U.S. Oil and Ref. Co. v. Lee Eastes Tank Lines, Inc., 104 Wn. App 823, 830-31, 16 P.3d 1278 (2001) (quoting Jones v. Best, 134 Wn.2d 232, 241, 950 P.2d 1 (1998)).
The Declaration clearly stated that deck replacement was a common expense. Section 16.3 of the Declaration provided, in pertinent part, that `[a]ll maintenance, repairs, and replacements to . . . the limited common areas . . . shall be made by the Board of Directors and be charged to all apartment owners as a common expense.' And section 5.1.2 defined the `balcony attached to Apartment 122' as a limited common area.
But the trial court concluded that `Joleen Bloss waived the right . . . to seek deck replacement' paid for by the Association. The court made three conclusions based on its findings of fact related to waiver. First, the court concluded that, `[b]y acceding to the Board's interpretation of the Declaration and not formally asserting any contrary position,' Jaineen waived her right. Second, the court concluded that `Bloss manifested her consent to the Board's approach and her waiver . . .' by `making a proper request to modify her deck but then failing to follow through with providing sufficient plans so that the Board could approve this request. . . .' Third, the court concluded that Joleen's `failure to seek replacement of her deck as a common expense' from the time she assumed ownership of unit 122 through the time of this action was further evidence of waiver. But `[m]ere silence does not constitute a waiver unless there is an obligation to speak.' Moreover, our Supreme Court has declared that `the mere failure to bring suit [does not] constitute a waiver of the right of action, so long as suit is brought within the statutory period.' Although Joleen participated in Board meetings in which a common understanding developed that the individual unit owners would pay for the deck replacements, the Association presents no evidence that she, or her sister, expressly agreed to give up her right to demand that the Association pay for the deck replacement. Nor has the Association presented any evidence of an unequivocal act or conduct demonstrating intent to waive.
Voelker v. Joseph, 62 Wn.2d 429, 435, 383 P.2d 301 (1963).
Voelker, 62 Wn.2d at 435.
For example, the minutes of the Board meeting from July 15, 1993 indicated that Joleen attended and `requested approval to modify the existing deck to extend it to the edge of the east side of the garage roof. . . .' The same minutes indicated that the deck `is being repaired in conjunction with the replacement of the garage roofs at Joleen's expense.' But the minutes did not indicate any agreement to the `understanding' by a representative of the Bloss family.
The trial court in its findings referred to the fact that the Board's minutes repeatedly reflect the understanding that the two deck replacements would be paid for by the unit owners. The court also noted that Joleen participated in the process by submitting a request for approval of a modification of her deck. But participation in the initial stages of a process to have her deck replaced is not an unequivocal act indicating intent to waive her right regarding the replacement cost. The trial court incorrectly relied on the inaction of the Bloss family as an expression of intent to waive. More than mere inaction is required to take away a contractual right from a party. We therefore reverse the court's conclusion that Jaineen waived her right to ask for the Association to pay for the replacement.
Next, Jaineen argues that the trial court erred by finding that her claim was barred by the doctrine of laches. The doctrine of laches can be traced to `the familiar maxim that equity aids the vigilant, not those who slumber on their rights.' It is an `equitable principle that in a general sense relates to neglect for an unreasonable length of time, under circumstances permitting diligence, to do what in law should have been done.' But laches also `requires an intervening change of condition, making it inequitable to enforce the claim.' Therefore, to prove the defense of laches, a defendant must prove that:
Arnold v. Melani, 75 Wn.2d 143, 148, 449 P.2d 800, 450 P.2d 815 (1968).
Arnold, 75 Wn.2d at 147.
Arnold, 75 Wn.2d at 147-48.
(1) the plaintiff had knowledge of the facts constituting a cause of action or a reasonable opportunity to discover such facts; (2) there was an unreasonable delay in commencing the action; and (3) there is damage to the defendant resulting from the delay.
In re Marriage of Hunter, 52 Wn. App. 265, 270, 758 P.2d 1019 (1988) (quoting In re Marriage of Watkins, 42 Wn. App. 371, 374, 710 P.2d 819 (1985)).
In re Marriage of Hunter, 52 Wn. App. 265, 270, 758 P.2d 1019 (1988) (quoting In re Marriage of Watkins, 42 Wn. App. 371, 374, 710 P.2d 819 (1985)).
The court concluded that laches applied because `[a]t all times the Board continued to plan the Association's budget in reliance on the understanding seemingly agreed to in the early 1990's.' But in In re Marriage of Sanborn, we held that a defendant claiming other uses for the money he should have paid to the plaintiff did not prove damages resulting from the delay justifying the application of the doctrine of laches. More specifically, the defendant claimed that he suffered damages from the delay because he would be required to pay arrearages on child support in addition to the appellate attorney fees he had already paid, and because he had anticipated using the unpaid child maintenance for other financial obligations. We declared that these detriments resulted from the defendant `having to do now what he was legally obligated to do years ago.' Similar to the defendant in Sanborn, the Association claims that it has planned its budget through the years based on the assumption that the money needed for the deck replacement could be used for other opportunities. In the Association's argument these budgetary decisions are a change in position and would cause it damage resulting from Jaineen's delay. But as in Sanborn, these lost opportunities are not the result of Jaineen's delay. They result instead from the Association now being required to pay for something it should have paid for years ago, not a damage justifying the defense of laches.
55 Wn. App. 124, 777 P.2d 4 (1989).
Sanborn, 55 Wn. App. at 128.
Sanborn, 55 Wn. App. at 128.
Sanborn, 55 Wn. App. at 128.
The court also found that `opportunities were lost to do the deck construction in conjunction with other work being done.' But the structural supports for the deck were put in place during the garage roof construction. Any other loss resulting from the loss of opportunities to rebuild the deck in conjunction with other projects is de minimus. Therefore, we reverse the court's conclusion that the doctrine of laches bars Jaineen's counterclaim.
Next, Jaineen argues that the trial court erred by concluding that she was equitably estopped from seeking to replace her deck at common expense. The party asserting equitable estoppel must prove its elements by clear, cogent, and convincing evidence. To prove equitable estoppel, the Association must show: `first, an admission, statement, or act inconsistent with a claim afterward asserted; second, action by another in reasonable reliance on that act, statement, or admission; and third, injury to the party who relied if the court allows the first party to contradict or repudiate the prior act, statement, or admission.'
Robinson v. City of Seattle, 119 Wn.2d 34, 82, 830 P.2d 318 (1992).
Robinson, 119 Wn.2d at 82.
The Association asserts that Jaineen does not dispute that the elements of equitable estoppel have been satisfied. Although Jaineen, in her reply brief, clearly argues that the elements have not been satisfied, this court does not consider issues first raised in the reply brief. But Jaineen does include a challenge to the injury element of both the doctrine of laches and equitable estoppel in the `Issues Pertaining to Assignments of Error' section of her opening brief. In conjunction with the argument in her reply brief, we consider this challenge sufficient to raise the issue of whether the Association has proven the elements of equitable estoppel. The trial court concluded that Jaineen was equitably estopped from enforcing her claim because of the injurious effect on the Association's budgetary planning. But the Association did not rely to its detriment on her failure to enforce her right. As with laches, `the mere failure to pay what one owes is not a change of position which will support an estoppel.' Making other plans for money that should have gone to pay for the deck replacement is not detrimental reliance justifying equitable estoppel. Next, in its response brief, the Association argues that Jaineen's claim is barred by the statute of limitations. The Association did not cross-appeal from the findings of fact and conclusions of law and judgment in its favor, but now argues that the trial court erred by omitting findings and conclusions related to the statute of limitations. By failing to cross-appeal, the Association is precluded from seeking review of this issue. RAP 2.4(a) provides, in pertinent part:
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); Herring v. Dep't of Soc. Health Servs., 81 Wn. App. 1, 14, 914 P.2d 67 (1996).
Bellingham Sec. Syndicate v. Bellingham Coal Mines, 13 Wn.2d 370, 388, 125 P.2d 668 (1942), overruled on other grounds by Berg v. Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990).
RAP 2.4(a); Wagner v. Beech Aircraft Corp., 37 Wn. App. 203, 212-213, 680 P.2d 425 (1984).
The appellate court will grant a respondent affirmative relief by modifying the decision which is the subject matter of the review only (1) if the respondent also seeks review of the decision by the timely filing of a notice of appeal . . . or (2) if demanded by the necessities of the case.
RAP 2.4(a); Wagner, 37 Wn. App. at 213.
RAP 2.4(a); Wagner, 37 Wn. App. at 213.
Finally, in its supplemental brief, allowed by a commissioner's ruling, the Association requests attorney fees under RCW 64.34.364(14) and RCW 64.34.455. Because the Association does not prevail, we do not award attorney fees.
In sum, we reverse the conclusions of the trial court that Jaineen waived her right and that the doctrine of laches or equitable estoppel bar her claim. We therefore remand to the trial court to decide Jaineen's counterclaim on its merits.
REVERSED AND REMANDED
APPELWICK, J. and COX, C.J., Concur.