IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
SCOTT HILLIUS; TOM STAEHR; No. 87954-5-I
RANDY DRUBEK; MARK MIEDEMA;
DANIEL and SONJA LYONS;
DOUGLAS and ANGELIQUE
SCARLETT; STEVEN and LISA
ZEHM; and RONALD SARAN,
Appellants,
v.
18 PARADISE LLP; and MJ PUBLISHED OPINION
MANAGEMENT, LLC doing business
as HOMESTEAD FARMS GOLF
COURSE,
Respondents,
WILLIAM (MICK) O’BRYAN; and JOSH
WILLIAMS,
Defendants.
BOWMAN, A.C.J. — Homeowners at the “Homestead Planned Residential
Development” (Homestead PRD) in Lynden, Washington, appeal from the trial
court’s order dismissing their claim that 18 Paradise LLP and MJ Management
LLC violated the Consumer Protection Act (CPA), chapter 19.86 RCW, by
collecting unauthorized special assessment and monthly maintenance fees. The
homeowners also appeal the trial court’s refusal to issue a money judgment as
further relief under RCW 7.24.080 after issuing a declaratory judgment that the
fees were unlawfully collected. And both parties request attorney fees on appeal. No. 87954-5-I/2
We conclude that the trial court did not err by dismissing the homeowners’ CPA
claim because they failed to show that the unauthorized collection of the special
assessment and fees affected the public interest. But the trial court abused its
discretion by refusing to issue a money judgment as further relief. We affirm in
part, reverse in part, and remand for the trial court to issue a money judgment.
And we decline to award attorney fees to either party.
FACTS
In January 1992, the city of Lynden enacted Lynden Ordinance 905, which
it codified under chapter 19.29 of the Lynden Municipal Code (LMC). The
ordinance established a planned residential development (PRD) zone and
created regulations governing the creation and completion of a PRD.
In July 1992, Homestead Northwest LLC (Homestead NW) created the
Homestead PRD in Lynden. The Homestead PRD consists of roughly 250 acres
with residential areas, a golf course, and common open space (COS).
Homestead NW drafted a “Master Declaration of Covenants, Conditions,
Restrictions and Reservations for Homestead [PRD]” (Master Declaration),
designating itself as the declarant and reserving various rights, including
ownership of the COS “so that it may be maintained by golf course maintenance
personnel.” It then granted an easement, allowing all Homestead PRD residents
to use the COS subject to payment of a monthly maintenance fee so that the
COS “may be properly managed and maintained.” The Master Declaration
allowed for Homestead NW to increase the maintenance fee annually by “up to”
five percent.
2
No. 87954-5-I/3
The Master Declaration also established a “Homestead Owners
Association” (HOA), consisting of every person or entity who is a record owner in
any Homestead PRD lot or condominium unit.1 But it explained that the HOA
“shall operate in [an] advisory capacity only” to Homestead NW so long as
Homestead NW or its successors own the COS.2 The city of Lynden approved
the Master Declaration, including its HOA provision.
In 2013, 18 Paradise bought Homestead PRD. And in 2017, 18 Paradise
executed a management agreement with MJ. Under the agreement, MJ would
maintain the COS, operate the golf course, and collect all rents, fees, and other
charges, including the monthly maintenance fee. MJ would pay 18 Paradise a
fixed monthly amount and receive as compensation “all funds due and payable
after expenses are paid.”
On June 28, 2019, MJ purported to amend the Master Declaration to
impose a one-time special assessment of $83 per Homestead PRD resident.
And, on December 3, 2019, MJ again purported to amend the Master Declaration
to increase monthly maintenance fees from $36 to $93, representing a
cumulative fee increase of five percent per year since 1992.
In May 2020, Scott Hillius, Tom Staehr, Daniel and Sonja Lyons, Douglas
and Angelique Scarlett, Mark Miedema, Mark and Cheri Holmes, and Steven and
Lisa Zehm (collectively homeowners) sued 18 Paradise, MJ, the city of Lynden,
1
Former LMC 19.29.090 and .020 (1992) required all PRDs to establish and fund an HOA “[t]o preserve community facilities and open space.” See Ordinance 905.
2
Section 3.10 of the Master Declaration requires parcel owners to accept conveyance of the COS from Homestead NW or its successors should they choose to transfer ownership.
3
No. 87954-5-I/4
Mao Hua Chen, Mount Tai Investment Inc., Mount Emei Investment Inc., William
O’Bryan, and Josh Williams. The homeowners alleged that MJ’s special
assessment and fee increases violated the CPA, breached the terms of the
Master Declaration, and violated the federal racketeer influenced and corrupt
organization act (RICO), 18 U.S.C. chapter 96. The homeowners also sought
several declaratory judgments, injunctions, and the creation of express and
constructive trusts. Finally, the homeowners sought class certification “of over
600 Parcel Owners.” On November 25, the court certified the homeowners as a
class, defined as “[e]very person or entity who is a record owner of a fee or
undivided fee interest in any Lot or Condominium Unit that is subject to the
Master Declaration.”
The homeowners amended their complaint four times over the next two
years. They dismissed their RICO claim and defendants Chen, Mount Tai, and
Mount Emei. In February 2022, the trial court granted Lynden’s summary
judgment motion and dismissed the city with prejudice. In September, the
homeowners moved for partial summary judgment to establish several
preliminary facts. As a result, the court issued an order establishing that (1) MJ
acted as the agent of 18 Paradise under the management agreement when it
issued the special assessment and increased the management fees, (2) the
management agreement required MJ to obtain express permission from 18
Paradise before issuing the assessment or increasing the fees, and (3) MJ failed
to obtain express permission.
4
No. 87954-5-I/5
On January 11, 2023, the homeowners filed their fifth amended
complaint,3 naming 18 Paradise, MJ, O’Bryan, and Williams as defendants.4 The
complaint again alleged that the special assessment and maintenance fee
increases violated the CPA. And they sought a declaratory judgment that MJ’s
amendments to the Master Declaration establishing the increases were invalid.
As a result, they asked for a permanent injunction requiring 18 Paradise “to
cease its unfair and deceptive acts and practices” of collecting unlawful
maintenance fees. The homeowners also sought a declaratory judgment that the
HOA provision of the Master Declaration did not comply with the requirements of
former LMC 19.29.090 and that 18 Paradise’s ownership of the COS violated
former LMC 19.29.090. And they asked for a permanent injunction for 18
Paradise to “cease its private ownership of the COS.”5
On March 3, 2023, 18 Paradise moved for partial summary judgment,
seeking dismissal of the homeowners’ request for a declaratory judgment that its
ownership of the COS violated former LMC 19.29.090 and for an injunction
ordering 18 Paradise to “cease its private ownership of the COS.” 18 Paradise
argued that the Master Declaration clearly rests ownership of the COS with them
and that the homeowners’ claims amounted to a quiet title action. In their
response, the homeowners disavowed any intent to quiet title to the COS. They
told the court, “This is not and never has been or could be a quiet title action.”
3
The fifth amended complaint lists the plaintiff homeowners as Hillius, Staehr, Randy Drubek, Miedema, the Lyonses, the Scarletts, the Zehms, and Ronald Saran.
4
The court later dismissed O’Bryan and Williams from the lawsuit. That order is not at issue in this appeal.
5
The homeowners also alleged several other claims not relevant to this appeal.
5
No. 87954-5-I/6
Instead, it is a CPA lawsuit. And “[t]he fact that a lawsuit questions whether
ownership of land is lawful does not convert it into a quiet title action.”
The court granted partial summary judgment for 18 Paradise. It concluded
that the Master Declaration rests ownership of the COS with 18 Paradise and
that the homeowners’ claims seek to divest 18 Paradise of that ownership. It
ruled that “[a]s a matter of law, [the homeowners] do not have a right to such
relief.”
On January 26, 2024, 18 Paradise again moved for partial summary
judgment, this time seeking dismissal of the homeowners’ CPA claim.6 18
Paradise argued that the homeowners “are unable to show how private,
voluntary transactions affect the public interest” under the factors established in
Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., 105 Wn.2d
778, 780, 719 P.2d 531 (1986). The homeowners argued that the Hangman
Ridge public interest factors were abrogated in 2009 when our legislature
codified a public interest test under RCW 19.86.093. See LAWS OF 2009, ch. 371,
§ 2. So, the court should look to only that statute to determine whether the
alleged deceptive or unfair conduct affects the public interest.
The trial court concluded that the “actions at issue were between a fixed
set of participants,” so the homeowners failed to satisfy the public interest test
under either Hangman Ridge or RCW 19.86.093. The court entered an order
dismissing the homeowners’ CPA claim and certified its order as a final judgment
under CR 54(b).
6
MJ joined in the motion.
6
No. 87954-5-I/7
The homeowners’ remaining claims proceeded to a bench trial on April 30,
2024.7 The court defined the remaining claims as requests for declaratory
judgment on (1) the validity of MJ’s amendments to the Master Declaration that
established a special assessment and raised monthly maintenance fees, (2)
whether use of maintenance fees is restricted to only maintenance of the COS,
and (3) whether the HOA provision of the Master Declaration violated former
LMC 19.29.090.
The trial court issued its oral ruling on July 3, 2024. It concluded that MJ’s
purported special assessment and maintenance fee increases were void
because MJ did not seek permission from 18 Paradise before amending the
Master Declaration. And it concluded that the maintenance fees are not tied to
the actual cost of maintenance. Finally, the court concluded that the Master
Declaration did not comply with former LMC 19.29.090. It reasoned that the
code required the establishment of an HOA, and while the Master Declaration
called for an HOA, the Homestead PRD had no current active association.
On September 11, 2024, the court issued its written “Findings of Fact,
Conclusions of Law, and Order on Remaining Claims.” The order largely tracked
with the court’s oral ruling. But, when addressing its HOA ruling, the court said
that any HOA would likely need to be “some manner of an advisory association,
as it would not own the [COS] or other property.” And it noted that “[i]t is not
before the Court to opine further on how to establish a homeowner association
7
The trial transcript is not part of the appellate record.
7
No. 87954-5-I/8
here.”8
Several months later on March 24, 2025, the homeowners petitioned for
further relief, seeking “specific recordable orders” invalidating MJ’s unlawful
amendments to the Master Declaration “in the hope that such an order will
instigate 18 Paradise and MJ . . . to comply with the balance of the judgment
without further action by the Court.” Specifically, the homeowners sought a
means to compel 18 Paradise to refund the unlawfully collected special
assessment and maintenance fees, as “[n]othing has been done to return
payments made by Homestead [PRD] owners.” The court denied the petition.9
On June 10 and July 2, 2025, after 18 Paradise continued to refuse to
refund any assessments or maintenance fees, the homeowners again petitioned
for further relief. This time, the homeowners summarized the amount of
unlawfully collected fees and sought a money judgment. The homeowners
argued that a money judgment was necessary and proper under RCW 7.24.080
to enforce the court’s declaratory judgment rulings.
The court held a show cause hearing on August 26, 2025. On November
12, 2025, the court entered a consolidated order denying both petitions, finding
that relief was “neither necessary nor proper” because the homeowners did not
plead monetary claims or seek monetary determinations at trial. The court
8
The homeowners ask us to “correct” the trial court’s ruling and clarify that the HOA must be more than an advisory body. But the issue before the court was whether the Master Declaration violated former LMC 19.29.090, not how 18 Paradise should remedy the violation. So, we decline to disturb the trial court’s ruling.
9
This order is not in the appellate record.
8
No. 87954-5-I/9
reasoned that the request exceeded the scope of the declaratory claims heard at
trial.
The homeowners appeal.
ANALYSIS
The homeowners argue that the trial court erred by dismissing their CPA
claim at summary judgment and refusing to grant their petitions for further relief
after trial.10 And both parties request attorney fees on appeal. We address each
argument in turn.
1. CPA
The homeowners argue the trial court erred by dismissing their CPA claim
for failure to show that their allegations affect the public interest. We disagree.
We review an order granting summary judgment de novo. Deutsche Bank
Nat’l Tr. Co. v. Slotke, 192 Wn. App. 166, 170, 367 P.3d 600 (2016). Summary
judgment is appropriate if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Id. at 170-71. The
moving party has the burden to show there are no genuine issues of material
fact. Id. at 171. Then, the burden shifts to the other party to set forth specific
facts rebutting the moving party’s contentions and disclosing the existence of a
10
The homeowners also argue that the trial court erred by dismissing at summary judgment their requests for a declaratory judgment that 18 Paradise’s ownership of the COS violates former LMC 19.29.090 and an injunction compelling 18 Paradise to “cease its private ownership” of the COS. But the homeowners do not show how 18 Paradise’s ownership of the COS violates former LMC 19.29.090. See RAP 10.3(a)(6) (brief should contain argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record). And, even if they made such a showing, it does not follow that the remedy would be an injunction divesting 18 Paradise of its ownership.
9
No. 87954-5-I/10
genuine issue of material fact. Id. We review all facts and draw reasonable
inferences from them in a light most favorable to the nonmoving party. Id.
Under the CPA, “[u]nfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce are . . . unlawful.”
RCW 19.86.020. To establish a CPA claim, a plaintiff must show (1) an unfair or
deceptive practice (2) occurring in trade or commerce (3) that affects public
interest, (4) an injury to plaintiff’s business or property, and (5) that the unfair or
deceptive practice caused the injury. Hangman Ridge, 105 Wn.2d at 784-85.
In Hangman Ridge, our Supreme Court created two distinct pathways to
determine whether an alleged unfair or deceptive act affects the public interest.
105 Wn.2d at 789. The first pathway is to show that the defendant violated a
statute containing a “specific legislative declaration of public interest.” Id. at 791.
If so, the act per se affects the public interest. Id. The second is to identify the
nature of the alleged deceptive or unfair transaction as commercial or private and
apply the appropriate factors. Id. at 789-90. To determine whether a deceptive
or unfair act arising from a private transaction satisfies the public interest
element, a court considers (1) whether the defendant committed the alleged act
in the course of its business; (2) whether the defendant advertised to the public in
general; (3) whether the defendant actively solicited the plaintiff, indicating
potential solicitation of others; and (4) whether the plaintiff and defendant
occupied unequal bargaining positions. Id. at 790-91.
Here, the homeowners fail to show that the collection of an unauthorized
special assessment and maintenance fees satisfies the public interest factors
10
No. 87954-5-I/11
under Hangman Ridge. While MJ collected the special assessment and
maintenance fees in the course of business, the homeowners do not show that
18 Paradise advertised to the public in general, actively solicited the
homeowners, or enjoyed an unequal bargaining position with the homeowners.
Still, the homeowners argue that Hangman Ridge “is no longer good
authority [to determine] the public interest element” under the CPA. According to
the homeowners, the legislature abrogated that portion of Hangman Ridge in
2009 when it enacted RCW 19.86.093, and it is “long past time” for this court to
clarify that RCW 19.86.093 is the sole means to determine whether a deceptive
or unfair act affects the public interest. We disagree.
We interpret statutes de novo. HomeStreet, Inc. v. Dep’t of Revenue, 166
Wn.2d 444, 451, 210 P.3d 297 (2009). When interpreting a statute, we first look
to its plain language to determine the legislature’s intent. Id. We assume the
legislature means exactly what it says and apply the statute as written. Id. at
452. And we assume the legislature is aware of the common law when it passes
a bill. Antio, LLC v. Dep’t of Revenue, 3 Wn.3d 882, 893, 557 P.3d 672 (2024).
To show that a statute has abrogated common law, there must be clear evidence
of the legislature’s intent to deviate from it. State v. Kurtz, 178 Wn.2d 466, 476-477, 309 P.3d 472 (2013).
Under RCW 19.86.093, a claimant “may” establish that an otherwise
private act or practice is injurious to the public interest because it:
(1) Violates a statute that incorporates this chapter;
(2) Violates a statute that contains a specific legislative
declaration of public interest impact; or
11
No. 87954-5-I/12
(3)(a) Injured other persons; (b) had the capacity to injure
other persons; or (c) has the capacity to injure other persons.
The use of “may” in a statute is generally permissive and confers
discretion. Nat’l Elec. Contractors Ass’n, Cascade Ch. v. Riveland, 138 Wn.2d 9,
28, 978 P.2d 481 (1999). So, the plain language of RCW 19.86.093 affords
claimants the discretion to show that a deceptive or unfair act affects the public
interest under RCW 19.86.093. But the language does not provide that the
statute is the sole means to satisfy the public interest prong of the CPA. Indeed,
we presume that the legislature knew of the Hangman Ridge factors at the time it
enacted the statute. See Antio, 3 Wn.3d at 893. And, still, the legislature chose
to use permissive rather than mandatory language in its application.
The homeowners argue that the legislative history “confirms that [RCW
19.86.093] was intended to change the test for the public interest element.” They
point out that the legislature enacted the statute, in part, as a response to
criticism that the Hangman Ridge factors were too burdensome for private
plaintiffs. See S.B. REP., S.B. 5531, 61st Leg., Reg. Sess. (Wash. 2009); H.B.
REP., SUBSTITUTE S.B. 5531, 61st Leg., Reg. Sess. (Wash. 2009). And they
highlight public testimony that the statute would simplify, streamline, and make
the public interest test “very usable.” H.B. REP., SUBSTITUTE S.B. 5531, at 3. But
the legislative history shows a desire to provide an alternative to the Hangman
Ridge factors. Nothing in the history amounts to clear evidence of an intent to
abrogate them.
In any event, the homeowners fail to satisfy the elements of RCW
19.86.093. They show no evidence that 18 Paradise violated a statute that
12
No. 87954-5-I/13
incorporates the CPA or that contains a specific legislative declaration of public
interest impact. See RAP 10.3(a)(6). And they offer no evidence that unlawful
collection of the special assessment and maintenance fees injured persons other
than the homeowners or that those acts had or have the capacity to do so. Id.
We affirm the trial court’s dismissal of the homeowners’ CPA claim at
summary judgment.
2. Petitions for Further Review
The homeowners argue the trial court erred by denying their petitions for
further relief seeking a money judgment for the special assessment and
maintenance fees collected under the invalid amendments to the Master
Declaration. We agree.
We review a trial court’s exercise of discretion for an abuse of that
discretion. State ex. rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971). A trial court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds or untenable reasons. Burnet v.
Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997).
Under RCW 7.24.080, “[f]urther relief based on a declaratory judgment or
decree may be granted whenever necessary or proper.” RCW 7.24.080 codifies
“the principle that every court has inherent power to enforce its decrees and to
make such orders as may be necessary to render them effective.” Ronken v. Bd.
of County Comm’rs of Snohomish County, 89 Wn.2d 304, 311-12, 572 P.2d 1
(1977). Further relief can take several forms, including a judgment for money
13
No. 87954-5-I/14
damages. See United Nursing Homes, Inc. v. McNutt, 35 Wn. App. 632, 640,
669 P.2d 476 (1983).
In Pacific Market International, LLC v. TCAM Core Property Fund
Operating LP, we concluded that issuing a money judgment is an appropriate
way to enforce rights arising from a declaratory judgment. No. 74623-5-I, slip op.
at 5, (Wash. Ct. App. Feb. 6, 2017) (unpublished), https://www.courts.wa.gov/
opinions/pdf/746235.pdf.11 In that case, a landlord and tenant sought declaratory
relief about whether the lease required the tenant to pay for all leased parking
spaces no matter how many spaces the tenant used. Id. at 2. The trial court
entered a declaratory judgment for the landlord. Id. at 3. Still, the tenant refused
to pay for the spaces. Id. at 5. The landlord petitioned for further relief in the
form of a money judgment, but the trial court refused to issue the judgment. Id.
at 3-4. We reversed, holding that further relief was necessary and proper
because “[w]ithout a corresponding money judgment to enforce [the landlord]’s
rights under the declaratory judgment, the declaratory judgment would be
hollow.” Id. at 13, 7.
This case is like Pacific Market. Here, the court issued a declaratory
judgment that MJ collected a one-time special assessment and monthly
maintenance fees under invalid amendments to the Master Declaration. The
ruling left 18 Paradise and MJ in possession of unlawfully collected assessments
11
“Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.” GR 14.1(c). “However, unpublished opinions of the Court of Appeals filed on or after March 1, 2013, may be cited as nonbinding authorities, if identified as such by the citing party, and may be accorded such persuasive value as the court deems appropriate.” GR 14.1(a). Pacific Market has such persuasive value.
14
No. 87954-5-I/15
and fees. The homeowners tried unsuccessfully for a year to obtain a refund of
those fees. As a result, a money judgment is both necessary and proper to avoid
leaving the homeowners with a hollow declaratory judgment.
Still, 18 Paradise and MJ argue that further relief is inappropriate, as the
homeowners did not seek a money judgment at trial, and further fact-finding
would be necessary to determine offsetting obligations. They suggest that the
homeowners’ petitions amount to “new money claims.” But a declaratory
judgment action is by nature a request for a declaration of the parties’ rights, not
a lawsuit for money damages. See RCW 7.24.020. And 18 Paradise cites no
authority that the homeowners must litigate damages that may flow from a
declaratory judgment to seek further relief under RCW 7.24.080. So, we assume
they could find none. Donner v. Blue, 187 Wn. App. 51, 61, 347 P.3d 881
(2015). Finally, 18 Paradise’s suggestion that the damages arising from the
court’s declaratory judgment amount to new money claims misses the mark. It is
untenable to require the homeowners to bear the cost and burden of seeking an
alternative forum to bring about the return of funds that the trial court declared MJ
had unlawfully collected.
We reverse the trial court’s order denying the homeowners petitions for
further relief and remand for the trial court to issue a money judgment.
3. Attorney Fees
The homeowners request attorney fees under RCW 19.86.090 “[i]f the
Court reverses the dismissal of the CPA claim.” Because we affirm dismissal of
15
No. 87954-5-I/16
the CPA claim, the homeowners are not entitled to attorney fees under RCW
19.86.090.
Both parties request attorney fees under section 8.3 of the Master
Declaration. That section provides for an award of “reasonable attorney’s fees
incurred by the prevailing party” in a suit for violating any condition, covenant, or
restriction. A contractual provision for an award of attorney fees supports an
award of fees on appeal under RAP 18.1. W. Coast Stationary Eng’rs Welfare
Fund v. City of Kennewick, 39 Wn. App. 466, 477, 694 P.2d 1101 (1985).
Because both parties have partially prevailed on appeal, we decline to award
attorney fees to either.
We affirm the trial court’s dismissal of the homeowners’ CPA claim,
reverse the trial court’s denial of their petitions for further relief, and remand for
the court to issue a judgment for money damages. We decline to award attorney
fees to either party.
WE CONCUR:
16