Filed Washington State Court of Appeals Division Two
March 28, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II AMOS TSIKAYI and CHRIS TSIKAYI, No. 56753-9-II
Respondents,
v. UNPUBLISHED OPINION CHRISTOPHER PAT KRAKE and LESLIE JEANNE KRAKE,
Appellants.
PRICE, J. — Christopher and Leslie Krake (Krakes) and Amos and Chris Tsikayi (Tsikayis)
are neighbors in the Summer Hill neighborhood. The Krakes appeal the superior court’s order
awarding attorney fees to the Tsikayis after the dismissal without prejudice of the Krakes’
counterclaim in a lawsuit between them. The Krakes argue the superior court erred because no
attorney fees provision applies to their counterclaim. They further argue the dismissal of the
counterclaim without prejudice is not a final judgment. We affirm the superior court.
FACTS
I. BACKGROUND FACTS
There is a line of Leyland Cypress trees near the boundary between the Tsikayis and the
Krakes. Due to their placement and height, the trees allegedly blocked the Krakes’ view of sunsets
and downtown Portland and shielded natural light from the home. Since the trees were almost No. 56753-9-II
entirely on the Tsikayis’ property, the Krakes asked their neighbors to trim their tops. When the
Tsikayis did not trim the trees, this dispute began.
A. HOA GOVERNING PROVISIONS.
Both neighbors are members of the Summer Hills Homeowners Association (HOA). The
HOA is governed by the Declaration of Mitigation Covenants, Conditions, and Restrictions for
Summer Hills (CCRs). As part of the landscaping plan and external improvement provisions
incorporated in the CCRs, the HOA also enacted numerous requirements through a document
called the Architectural Controls and Guidelines (ACGs). The HOA bylaws also provide for an
Architectural Review Committee (ARC), which is tasked with homeowner education and
enforcement of the ACGs.
In the event of a dispute between neighbors regarding these requirements, the ACGs
impose a process for resolving the dispute. The process starts when an owner makes a complaint
to the ARC. The ARC will review any plans on file, visually inspect the site, and collect any
relevant data. If the ARC determines there is no violation, the complaint will be closed, and the
complainant notified of the decision. If a violation is found, the ARC will contact the offending
owner and request compliance. If the owner fails to comply, the ARC or a management company
will send a fourteen-day letter requesting immediate compliance and may request a hearing with
the HOA Board of Directors (Board).
If any owner disagrees with the ARC’s determination, the owner may timely appeal the
decision to the Board. To be timely, the appeal must be submitted within two months of the
decision. A violating owner who appeals the ARC decision and chooses to hire an attorney may
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risk paying the HOA’s attorney fees if they lose before the Board. Referring back to the CCRs,
the ACGs give this notification to owners as follows:
When an owner, who is found in violation by the ARC, appeals the ARC decision to the Board and chooses to retain an attorney to present their appeal, the [HOA] may retain an attorney (as has been the practice) and may engage a court reporter to record the hearing. This is done to protect the [HOA] in the event an owner files a lawsuit thereafter. If the Board, after hearing the appeal, rules against the owner, then the Board may charge the owner for reasonable attorney fees and costs incurred by the [HOA] per Article X Section 3 of the [CCRs].
Clerk’s Papers (CP) at 729-30.
Following a decision from the Board, if either the HOA or the owner still do not agree with
the decision, the parties are required to engage in good-faith mediation prior to filing a lawsuit.
The CCRs’ attorney fees provision in Article X, section 3, referenced in the ACGs, states
that “violators” shall be responsible for costs and fees:
The [HOA] or any Owner shall have the right to enforce by proceeding at law or in equity all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration . . . . The violators shall be responsible for all costs incurred in enforcing this Declaration . . . including reasonable attorney’s fees, whether or not litigation is commenced, and if so, during any arbitration, trial or appeal, or in any proceeding in federal bankruptcy court or under state receivership or insolvency statutes. The [HOA] may add any such cost due it to the current or next annual assessment of the offending Owners. Whenever the [HOA] anticipates incurring attorney fees or costs to enforce any of its governing provisions, the [HOA] shall notify any Owner involved, giving that Owner notice that the Owner may be responsible for reasonable attorney fees and costs whether or not litigation is commenced. Prior to filing any lawsuit, all Owners and/or the [HOA] will be required to participate in and complete formal Mediation in a good faith effort to resolve the dispute before filing a lawsuit. The parties will agree upon and share equally in the Mediation cost as a condition required before filing any lawsuit.
CP at 565 (emphasis added).
Among the provisions of the CCRs is a view blockage restriction in Article IV, which
requires members to trim or remove vegetation that blocks a neighbor’s view.
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B. NEIGHBOR DISPUTE.
In 2015, the Krakes asked the Tsikayis to trim the tops of the several Leyland Cyprus trees
on the Tsikayis’ property so that the trees would not block the Krakes’ view. In an effort to resolve
the issue, the Krakes requested that the ARC review whether the Tsikayis’ trees were impacting
their view in violation of the CCRs. The ARC issued a determination that the Tsikayis’ trees did
not violate the view blockage restriction. The Krakes did not appeal this decision to the Board in
accordance with the required process.
In 2016, the Krakes believed the Tsikayis’ trees had encroached over the boundary line and
onto their property. Apparently believing either they had permission from the Tsikayis or
permission was not needed because the trees had grown onto their property, the Krakes hired a
contractor, who trimmed the tops of the Tsikayis’ trees.
II. RESULTING LITIGATION
A. TSIKAYIS’ LAWSUIT AND KRAKES’ COUNTERCLAIM
In 2017, the Tsikayis filed a complaint against the Krakes for timber trespass for trimming
the trees without permission and sought a permanent injunction to prohibit the Krakes from
trespassing on the Tsikayi property or cutting the trees. 1 The Krakes responded with two
counterclaims. The first counterclaim sought damages for the Tsikayis’ breach of the HOA
1 Whether or not the Krakes had, or needed, permission from the Tsikayis to trim the trees is still disputed.
4 No. 56753-9-II
restrictions for the trees and an injunction to require the Tsikayis maintain the height of the trees
at less than 24 feet.2 The first counterclaim referenced the ARC’s 2015 decision, alleging,
It was not until August 2015 that plaintiffs objected to cutting the trees and, in bad faith, encouraged the ARC to find that their trees did not impact defendants’ view. The ARC did not consider the impact on light for the defendants . . . . ....
Plaintiffs[’] bad[-]faith involvement with the ARC, which elevated defendants[’] view rights without regard to the CCRs and beyond the limit of their authority in addressing non-native trees, has demonstrated that the HOA won’t enforce defendants[’] to [sic] view easement rights and to be free from light obstruction. Plaintiffs[’] previous refusal to pay for the agreed cutting is likely to continue without injunctive relief.
CP at 29-30.
B. MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND PARTIAL FINAL JUDGMENT
The litigation progressed over the course of several years. In 2019, following extensive
discovery, the Tsikayis moved for partial summary judgment to dismiss the Krakes’ first
counterclaim. The Tsikayis alleged that the Krakes could not challenge the ARC’s 2015 decision
about the trees because they failed to adhere to the appeals process mandated by the CCRs and
ACGs.
The superior court agreed with the Tsikayis. In its March 2019 “Ruling and Order on
Plaintiffs’ Motion for Partial Summary Judgment on Liability,” the superior court granted the
Tsikayis’ partial summary judgment motion specific to the Krakes’ first counterclaim. The ruling
stated the Krakes were “precluded from enforcing any HOA restrictions for failure to exhaust their
2 The Krakes’ second counterclaim related to alleged trespass for the trees’ growth and a play structure on the Krakes’ property; the second counterclaim remains disputed and is not relevant to this appeal.
5 No. 56753-9-II
contractual remedies . . . .” CP at 394. The Krakes filed a motion for reconsideration, which the
superior court denied. The Krakes did not attempt to seek review of the decision.
Several months later, pursuant to CR 54(b), the Tsikayis moved for entry of partial final
judgment based on the March 2019 ruling, seeking a dismissal of the Krakes’ counterclaim with
prejudice so potential evidentiary issues would not affect the upcoming trial. The Krakes objected,
arguing the March partial summary judgment ruling was not a final judgment. The Krakes
contended the superior court’s ruling failed to include an express direction for entry of judgment
and, if anything, their counterclaim should be dismissed without prejudice since the ruling was
based on a failure to follow the appeals process and was not a decision on the merits. The Krakes
also objected to any entitlement of attorney fees, as the judgment was not final.
The superior court denied the Tsikayis’ motion for entry of the judgment, stating a desire
to avoid multiple appeals and preserve judicial resources. The superior court also explained there
were other avenues available for the Tsikayis to prevent introduction of certain evidence at an
upcoming trial.
The trial was delayed for more than two years. Then, in October 2021, as the rescheduled
trial date neared, the Krakes sought further delay of the trial. In response to the potential
continuance, the Tsikayis moved again for entry of partial final judgment on the Krakes’ first
counterclaim. The Tsikayis explained that their motion was not as premature as it may have been
two years prior and they were entitled to attorney fees for the counterclaim and the work preparing
for trial. The Tsikayis did not submit a proposed order with their motion.
The Krakes conceded that the superior court had previously dismissed their first
counterclaim with its March 2019 ruling, but they objected to the superior court granting attorney
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fees until the Tsikayis submitted a proposed order to which the Krakes would have an opportunity
to respond.
Soon thereafter, the Tsikayis submitted their proposed order. The original language of the
proposed order provided, “There being no just reason for delay,” a “final partial judgment” should
be entered in favor of the Tsikayis on the Krakes’ first counterclaim. CP at 529. The proposed
order further entitled the Tsikayis to an award of reasonable attorney fees, stating,
[The Tsikayis] are the prevailing parties as to defendants’ first counterclaim and . . . thus are entitled to costs and disbursements as determined by the Court, and an award of reasonable attorneys’ fees on [the Krakes’] first counterclaim.
CP at 529.
The Krakes objected to the language of the proposed order. The Krakes asserted that
(1) the judgment was not appropriately a final appealable judgment and, in any event, the language
of the order was insufficient to certify the judgment being appealable under CR 54(b), (2) the order
should specify their counterclaim was dismissed without prejudice because it was decided on a
failure to exhaust, not on the merits, and (3) an award of attorney fees was improper and premature
because the Tsikayis had not submitted a motion for attorney fees under CR 54(d)(2).
The Tsikayis responded, in part, by contending that the dismissal of the Krakes’ first
counterclaim should be with prejudice because, even though it was decided on the failure to
exhaust the dispute resolution process of the CCRs, the deadline for using that process had long
since expired.
The superior court amended the proposed order, going through the language “item-by-
item” and making changes “based on the parties’ argument[s].” VRP at 121. The superior court
amended the order in response to the Krakes’ complaint about attorney fees. Whereas the language
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previously stated the Tsikayis were entitled to attorney fees, the edited language merely stated they
were “entitled to submit a motion” for attorney fees. CP at 529.
The superior court further agreed with the Krakes to edit the language of the order to
specify the first counterclaim was “dismissed without prejudice,” apparently agreeing with Krakes
that the phrase was more accurate because the counterclaim was not dismissed on the merits.
CP at 529. The superior court left the language about there being “no just reason for delay . . . .”
The superior court entered its order entitled, in part, “Partial Final Judgment” on October
22, 2021. CP 528. The edited findings of the order read as follows:
2. The Court’s Summary Judgment Order represents a final adjudication of defendants’ first . . . counterclaim[].
3. [The Krakes’] first . . . counterclaim[] [is] not related and stem[s] from separate and distinct facts as [the Tsikayis’] claims against [the Krakes], and any immediate appeal of the issues in the Summary Judgment Order as to [the Krakes’] counterclaim[] will not prevent the existing litigation from going forward.
4. There being no just reason for delay, this final partial judgment shall be entered without further delay because defendants’ counterclaim[] [is] now fully resolved.
5. [The Tsikayis] are the prevailing parties as to defendants’ first counterclaim and . . . thus are entitled to submit a motion for costs and disbursements as determined by the Court, and an award of reasonable attorneys’ fees on [the Krakes’] first counterclaim.
The final language of the order read:
1. Judgment in favor of [the Tsikayis] as to [the Krakes’] first counterclaim . . . . The first counterclaim is dismissed without prejudice. . . .
2. [The Tsikayis] shall be entitled to seek costs and disbursements as determined by the Court, and an award of reasonable attorneys’ fees upon motion on [the Krakes] first counterclaim to be determined pursuant to CR 54(d)(2).
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CP at 529 (emphasis added).
C. TSIKAYIS’ MOTION AND AWARD OF ATTORNEY FEES
In December 2021, the Tsikayis filed a separate motion requesting judgment and a specific
amount of attorney fees. The Tsikayis contended that Article X of the CCRs contained a unliteral
attorney fees provision that should apply to them by operation of RCW 4.84.330, which makes
unilateral fee provisions bilateral. The Tsikayis also argued that the dismissal of the Krakes’ first
counterclaim, even though it was labeled “without prejudice,” was actually a final judgment
because it disposed entirely of the issues in that counterclaim. CP at 645. They reasoned that
because the Krakes failed to appeal the 2015 ARC decision within the time period required by the
CCRs, the judgment was final. The Tsikayis requested over $85,000 in attorney fees.
The Krakes objected, arguing to the superior court that the CCRs did not provide the
Tsikayis with attorney fees in the context of the counterclaim. According to the Krakes, the CCRs’
use of the term “violator” in the Article X attorney fees provision was dispositive. CP at 798. The
Krakes argued that a violator in this sense is someone who was determined to have violated the
CCRs, which did not occur here. The Krakes also contended the attorney fees provision did not
apply to actions between two owners because the language of the ACGs (notifying owners the
HOA may charge owners for its incurred fees) limited attorney fees for actions between the HOA
and an owner only. The Krakes further argued fees were only awardable for a final judgment and
a dismissal without prejudice was not a final judgment. Finally, the Krakes asserted the amount
of the requested fees was unreasonable.
The superior court granted the Tsikayis’ motion, awarding them attorney fees in the amount
of over $55,000. The superior court concluded that Article X “applie[d] to lawsuits between
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individual owners,” and, therefore, RCW 4.84.330 applied to provide fees to owners who prevailed
in those lawsuits. CP at 784. It determined the Tsikayis were the prevailing party as to the Krakes’
first counterclaim, and the dismissal without prejudice was a final judgment since the Krakes’
“administrative remedies ha[d] expired.” CP at 784. The final “Order Granting Plaintiffs’ Motion
for Attorney Fees and Judgment” (February 2022 final order) was filed on February 11, 2022. CP
at 781.
The Krakes sought discretionary review of this February 2022 final order granting attorney
fees.3 This court determined the matter was appealable as a matter of right. Perfection Letter,
Tsikayi v. Krake, No. 56753-9-II (Mar. 21, 2022).
ANALYSIS
I. REVIEW OF ATTORNEY FEES ORDER UNDER RAP 2.4
As an initial matter, the Tsikayis argue that we must dismiss the Krakes’ appeal because
they appealed the wrong order. The Tsikayis contend the Krakes should have appealed the October
2021 underlying Partial Final Judgment order entitling the Tsikayis to attorney fees, not the
February 2022 final order, which only determined the amount of the attorney fees. In support of
their argument, the Tsikayis refer to RAP 2.4 and other authorities that provide, “[A]n appeal from
an attorney fee decision does not bring up for review a separate judgment on the merits unless a
timely notice of appeal is filed from that judgment.” Bushong v. Wilsbach, 151 Wn. App. 373,
377, 213 P.3d 42 (2009); Carrara, LLC v. Ron & E Enters., Inc., 137 Wn. App. 822, 825-26,
155 P.3d 161 (2007); RAP 2.4(b). We disagree.
3 The Krakes do not seek review of the amount of attorney fees awarded.
10 No. 56753-9-II
Here, the October 2021 Partial Final Judgment stopped short of actually awarding fees to
the Tsikayis. In fact, during the October hearing on the judgment, the superior court edited the
findings in response to the Krakes’ objections to doing just that. The Tsikayis proposed language
that initially stated the Tsikayis, as prevailing parties, were “entitled to costs and disbursements as
determined by the Court.” CP at 529. But following objection from the Krakes, the superior court
edited the language to say only that the Tsikayis were “entitled to submit a motion for costs and
disbursements as determined by the Court.” CP at 529 (emphasis added). Another portion of the
order merely stated the Tsikayis “shall be entitled to seek costs and disbursements as determined
by the Court, and an award of reasonable attorneys’ fees . . . .” CP at 529. Because the October
2021 Partial Final Judgment only entitled the Tsikayis to “seek” fees, the Krakes were entitled to
appeal both the legal basis and amount of the attorney fees by requesting review of the superior
court’s February 2022 Order Granting Plaintiffs’ Motion for Attorney Fees and Judgment.
II. ATTORNEY FEES UNDER THE CCRS
The Krakes contend the superior court erred in granting the Tsikayis’ attorney fees with
two principal arguments. First, the Krakes argue the attorney fees provision in the CCRs (Article
X) did not apply to their first counterclaim because the provision is limited to an award when
someone is found to be a “violator” and does not apply unless and until the ARC or Board
determines there was a violation. Second, the Krakes argue that an award of attorney fees requires
a final judgment and because the dismissal of their first counterclaim was without prejudice, it was
not a final judgment. We disagree with both arguments.
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A. LEGAL PRINCIPLES
1. CCRs Interpretation
We apply the rules of contract interpretation to restrictive covenants. Wilkinson v.
Chiwawa Cmtys. Ass’n, 180 Wn.2d 241, 249, 327 P.3d 614 (2014). Our main objective when
“interpreting a restrictive covenant is to determine the covenant drafter’s intent by examining the
clear and unambiguous language of the covenant.” Saunders v. Meyers, 175 Wn. App. 427,
438-39, 306 P.3d 978 (2013). The goal is to determine and give effect to the intended purposes of
the covenants. Riss v. Angel, 131 Wn.2d 612, 623, 934 P.2d 669 (1997). A contract interpretation
that gives effect to all provisions is favored over one that renders a provision ineffective.
Snohomish County Pub. Transp. Benefit Area Corp. v. FirstGroup Am., Inc., 173 Wn.2d 829, 840,
271 P.3d 850 (2012). “And ‘[w]here one construction would make a contract unreasonable, and
another, equally consistent with its language, would make it reasonable, the latter more rational
construction must prevail.’ ” Kiona Park Ests. v. Dehls, 18 Wn. App. 2d 328, 335, 491 P.3d
247 (2021) (alteration in original) (quoting Byrne v. Ackerlund, 108 Wn.2d 445, 453-54,
739 P.2d 1138 (1987)).
We give language “ ‘its ordinary and common use’ ” and may not construe the language in
a way that “ ‘defeat[s] its plain and obvious meaning.’ ” Wilkinson, 180 Wn.2d at 250 (quoting
Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 816, 854 P.2d 1072 (1993)).
“[I]f more than one reasonable interpretation of the covenants is possible regarding an issue, we
must favor that interpretation which avoids frustrating the reasonable expectations of those
affected by the covenants’ provisions.” Green v. Normandy Park Riviera Section Cmty., Inc.,
137 Wn. App. 665, 683, 151 P.3d 1038 (2007), review denied, 163 Wn.2d 1003 (2008). We must
12 No. 56753-9-II
give “ ‘special emphasis’ ” to the interpretation that protects the owners’ collective interests. Riss,
131 Wn.2d at 621 (quoting Lakes at Mercer Island Homeowners Ass’n v. Witrak, 61 Wn. App.
177, 181, 810 P.2d 27 (1991)).
2. Unilateral Fees Provisions Made Bilateral Pursuant to RCW 4.84.330
Attorney fees may be awarded if authorized by a contract, statute, or a recognized ground
in equity. Bowles v. Dep’t of Ret. Sys., 121 Wn.2d 52, 70, 847 P.2d 440 (1993). We conduct a de
novo review to determine whether there is a legal basis for awarding or denying attorney fees under
a contract, statute, or ground in equity. Falcon Props. LLC v. Bowfits 1308 LLC, 16 Wn. App. 2d
1, 11, 478 P.3d 134 (2020).
Unilateral attorney fees provisions can be made bilateral by operation of law through RCW
4.84.330. Attorney fees may be awarded to the prevailing party in an action on a contract
regardless of whether the prevailing party is the party specified in the contract:
In any action on a contract or lease . . . where such contract or lease specifically provides that attorneys’ fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he or she is the party specified in the contract or lease or not, shall be entitled to reasonable attorneys’ fees in addition to costs and necessary disbursements.
RCW 4.84.330. This statute helps ensure parties will not be deterred from choosing to bring a
claim for fear of triggering the provision. Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481,
489, 200 P.3d 683 (2009).
RCW 4.84.330 defines a “prevailing party” as “the party in whose favor final judgment is
rendered.” Generally, a prevailing party is the party who received “an affirmative judgment in its
favor” or the party who “substantially” prevailed based on “the extent of the relief afforded [to]
the parties.” McLelland v. Paxton, 11 Wn. App. 2d 181, 222-23, 453 P.3d 1 (2019). A party who
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successfully defends a claim may be a prevailing party. Hawkins v. Diel, 166 Wn. App. 1, 10,
269 P.3d 1049 (2011).
A final judgment necessary for the award of fees is “[a] court’s last action that settles the
rights of the parties and disposes of all issues in controversy.” Wachovia, 165 Wn.2d at 492
(alterations in original) (quoting BLACK'S LAW DICTIONARY 859 (8th ed. 2004)). A final judgment
is one that “resolve[s] the merits of a party’s legal claims.” Denney v. City of Richland, 195 Wn.2d
649, 654, 462 P.3d 842 (2020). “A ruling that is not appealable is not a final judgment.” In re the
Ests. of Jones, 170 Wn. App. 594, 605, 287 P.3d 610 (2012); see RAP 2.2(a).
A dismissal without prejudice may still be a final judgment. Munden v. Hazelrigg,
105 Wn.2d 39, 40-41, 711 P.2d 295 (1985). A dismissal with prejudice precludes subsequent
actions based on the same claims, while a dismissal without prejudice typically does not. See Rose
v. Fritz, 104 Wn. App. 116, 121, 15 P.3d 1062 (2001). But both kinds of dismissals may entirely
dispose of the present action. Id. For example, “a dismissal without prejudice may be appealable,
pursuant to RAP 2.2(a)(3), where its effect is to determine the action and prevent a final judgment
or discontinue the action.” Munden, 105 Wn.2d at 40-41. And when a statute of limitations bars
refiling of a case, the action is effectively discontinued “whether [the] claim was dismissed with
or without prejudice.” Tjart v. Smith Barney, Inc., 107 Wn. App. 885, 893, 28 P.3d 823 (2001),
review denied, 145 Wn.2d 1027; cert. denied, 537 U.S. 954 (2002); see also Wachovia, 165 Wn.2d
at 487.
But if there is no bar to a subsequent suit or the effect of the dismissal is not to determine
or discontinue the action, the dismissal is not appealable and, therefore, not a final judgment.
Munden, 105 Wn.2d at 41. A voluntary dismissal without prejudice, for example, is not a final
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judgment under RCW 4.84.330 because it “leaves the parties as if the action had never been
brought.” Wachovia, 165 Wn.2d at 492.
B. APPLICATION
1. CCR Interpretation
The CCRs contain an attorney fees provision. Article X, section 3 allows for attorney fees
for owners defending enforcement of the CCRs from other owners. Again, the provision states, in
relevant part:
The [HOA] or any Owner shall have the right to enforce by proceeding at law or in equity all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration . . . . The violators shall be responsible for all costs incurred in enforcing this Declaration . . . including reasonable attorney’s fees . . . .
CP at 565 (emphasis added). An “Owner” is defined as “the record Owner of a fee interest,
grantors under a deed of trust, and contract purchasers who are in possession of a Lot.” CP at 551
(Article I, section 9). Violator is not defined in the CCRs; thus, we may look to its ordinary and
common use. “Violate” is defined as “to fail to keep: break, disregard,” and a “violation” is “an
infringement or transgression.” WEBSTER’S THIRD NEW INT’L DICTIONARY OF THE ENGLISH
LANGUAGE 2554 (2002). And a “violator” is “one that commits a violation.” Id.
As noted above, the ACGs also mention attorney fees in the context of a dispute with the
HOA. While outlining the dispute process, the ACGs provide that the HOA may charge back the
fees it incurs when an owner hires an attorney to challenge an action to the Board.
Here, the Krakes argue the attorney fees provision in Article X should not apply to their
dispute with the Tsikayis. The Krakes contend it is not a standard attorney fees provision because
it does not award fees to the prevailing party, but instead specifies only “violators” must pay.
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Coupling this “violator” reference with the ACGs’ discussion of fees in the context of a dispute
with the HOA, the Krakes reason the drafters’ intent was to limit the class of persons who must
pay attorney fees, specifically only “violators” in situations where a “violation” has been
determined by the HOA or ARC. Because the HOA or ARC never found a violation in this case,
the Krakes argue the attorney fees provision cannot be triggered regardless of the operation of
RCW 4.84.330.
The crux of the Krakes’ argument is their focus on the language of the appeals process
outlined in the ACGs. While any owner may appeal any adverse ARC decision against them, the
language in the ACGs does not state all owners who appeal may be required to pay attorney fees.
Instead, the language is very specific—only those owners who have found to be in violation of the
CCRs may be required to pay for attorney fees. Br. of Appellant 14-18 (citing CP at 729-30
(ACGs) (“When an owner, who is found in violation by the ARC, appeals the ARC decision . . .
then the Board may charge the owner for reasonable attorney fees and costs incurred by the [HOA]
per Article X Section 3 of the [CCRs].”)). The Krakes reason the drafters intended to “distinguish
between the two classes of homeowners” because the ACGs do not include language that applies
the attorney fees provision for owners who are not found in violation of the CCRs, like the
Tsikayis. Br. of Appellant at 14. Therefore, given this distinction, the attorney fees provision is
only meant to apply to violating owners because if the drafters had intended for the provision to
apply to non-violating owners, they would have included similar language in the ACGs to so
reflect. In sum, according to the Krakes, the attorney fees provisions do not “apply to homeowner
v. homeowner litigation independent of the [HOA].” Reply Br. of Appellant at 16.
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The Krakes’ position is unpersuasive. The language of the CCRs’ attorney fees provision
in Article X is broad. Under Article X, attorney fees may be awarded to the HOA or any owner
who successfully enforces the CCRs against one who breaks or disregards the CCRs. An owner
can expect to be responsible for attorney fees should they violate the CCRs. Given the “any owner”
language in Article X, an owner who successfully enforces the CCRs against another owner in a
proceeding at law can expect to be awarded attorney fees from the other owner who has violated
the CCRs.
Considering the breadth of Article X, the references to attorney fees in the language used
in the ACGs are more reasonably viewed as mere warnings to owners of the potential
consequences of challenging the HOA, rather than provisions that limit the reach of Article X to
only disputes between owners and the HOA or owners with an adjudicated violation. Indeed, the
Krakes’ interpretation would lead to unreasonable and arbitrary results. For example, under the
Krakes’ interpretation, the Tsikayis’ could recover attorney fees had the ARC determined the trees
violated the CCRs, but because the Tsikayis’ properly adhered to the CCRs, they must now pay
their own fees. Further, the Krakes’ interpretation could potentially lead to an owner bringing
multiple harassing claims against a CCR-adhering neighbor without any fear of liability for fees if
they lost, so long as the ARC was never involved.
In the end, interpreting the CCRs to provide recovery for homeowner-versus-homeowner
litigation encourages compliance and discourages spurious litigation among neighbors, which is
consistent with the law’s directive to interpret HOA covenants in a manner that supports all the
owners’ collective interests. See Riss, 131 Wn.2d at 623 (“special emphasis” is placed on an
interpretation of HOA restrictions that protects the owners’ collective interests).
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Although Article X imposes liability for fees on an owner found in violation, the provision
is silent on what happens when an accused violator successfully defends a suit against them. This
clearly makes the provision functionally one-sided and, therefore, unilateral. See Quality Food
Ctrs. v. Mary Jewell T, LLC, 134 Wn. App. 814, 818, 142 P.3d 206 (2006) (a one-sided attorney
fees provision is a unilateral provision under RCW 4.84.330). This is precisely when RCW
4.84.330 steps in and converts the unilateral provision into a bilateral provision that awards fees
to the owner who defends themselves from being an accused violator.
We conclude that the Article X attorney fees provision applies to the Krakes’ counterclaim.
Because the Krakes, as owners in the HOA, brought suit against the Tsikayis, seeking damages
and injunctive relief for the trees on the Tsikayis’ property that allegedly grew to block the Krakes’
view, the Krakes unsuccessfully brought suit to enforce the HOA restrictions. With the operation
of RCW 4.84.330 to make the unilateral attorney fees provision of Article X bilateral, the Tsikayis’
defense of the Krakes’ counterclaim qualifies for an award of attorney fees.
2. Final Judgments and Dismissals Without Prejudice
Even if the CCRs provide an eventual award of fees to the Tsikayis, an award now would
still be premature unless the superior court’s decision to dismiss the Krakes’ first counterclaim is
a final judgment. The Tsikayis argue they are entitled to attorney fees now because the dismissal
of the Krakes’ first counterclaim, even though it was without prejudice, is a final judgment. The
Tsikayis contend that the counterclaim was rooted in the 2015 ARC decision and, since the Krakes
failed to appeal that decision and no further appeal is possible, those claims are now final.
18 No. 56753-9-II
The Krakes respond that the dismissal of their counterclaim without prejudice is not a final
judgment because the counterclaim was not on the merits, was unrelated to the 2015 ARC decision,
and sought injunctive relief.
Resolving this question depends on whether the Krakes’ first counterclaim was rooted in
the 2015 ARC decision. Reviewing the language of this counterclaim, its connection to the 2015
ARC decision is clear. Again, the first counterclaim alleged:
It was not until August 2015 that plaintiffs objected to cutting the trees and, in bad faith, encouraged the ARC to find that their trees did not impact defendants’ view. The ARC did not consider the impact on light for the defendants . . . .
....
Plaintiffs[’] bad[-]faith involvement with the ARC, which elevated defendants[’] view rights without regard to the CCRs and beyond the limit of their authority in addressing non-native trees, has demonstrated that the HOA won’t enforce defendants[’] to [sic] view easement rights and to be free from light obstruction. Plaintiffs[’] previous refusal to pay for the agreed cutting is likely to continue without injunctive relief.
The Krakes’ counterclaim alleges the ARC failed to enforce the CCRs against the Tsikayis
after the ARC determined, in 2015, that the trees did not violate the view blockage restriction. The
allegations of the counterclaim are clearly tied to that 2015 ARC decision.
This tie to the 2015 ARC decision is dispositive on whether the dismissal is a final
judgment because any possible further action on the 2015 decision is barred. The Krakes did not
appeal the 2015 ARC decision, nor did they engage in good-faith mediation before filing their
counterclaim. Because the ACGs require a specific dispute resolution process for an owner who
disagrees with an ARC decision, the Krakes were required to follow that process for the 2015
decision. See Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 131, 769 P.2d 298
19 No. 56753-9-II
(1989) (“Generally, contractual grievance procedures must be exhausted before parties resort to
the courts.”). And because an appeal must be made within two months of the decision, the Krakes’
time for appeal of the 2015 ARC decision has expired.4 In this sense, something akin to a statute
of limitations has run on the first counterclaim. Therefore, the dismissal is final because it
discontinues the action.5 See Tjart, 107 Wn. App. at 893 (when statute of limitations barred refiling
case, action was effectively discontinued, regardless of whether dismissal of claim was with or
without prejudice).
Notwithstanding the superior court’s characterization of its dismissal of the Krakes’ first
counterclaim as being without prejudice, the Tsikayis are entitled to attorney fees because it was
a final judgment under RCW 4.84.330.
III. ATTORNEY FEES ON APPEAL
The Tsikayis’ seek attorney fees for this appeal under RAP 18.1, the CCRs, and RCW
4.84.330. RAP 18.1(a) allows us to award reasonable attorney fees if an applicable law gives the
party the right to recover attorney fees. Article X of the CCRs provides for attorney fees on
4 Moreover, the superior court took this exact view of the Krakes’ first counterclaim and its connection to the 2015 ARC decision when it originally explained why it dismissed the counterclaim in its 2019 “Court’s Ruling and Order on Plaintiff’s Motion for Partial Summary Judgment on Liability” (referring to the counterclaim, the superior court states, “In the instant case the defendants did not exhaust their remedies under the HOA’s appeal procedures.”). CP at 497. Yet, beyond seeking reconsideration, the Krakes have not attempted to seek review of this order. See generally Kemmer v. Keiski, 116 Wn. App. 924, 937, 68 P.3d 1138 (2003) (failure to appeal judgment that leaves nothing unresolved precludes further review); RAP 5.2(a). 5 Our conclusion that this is a final order is consistent with the superior court’s language in its partial final judgment that mirrored CR 54. The superior court’s partial final judgment stated, “There being no just reason for delay, this final partial judgment shall be entered without further delay because defendants’ counterclaims are now fully resolved.” CP at 529.
20 No. 56753-9-II
appeal.6 Because this attorney fees provision applies to the Tsikayis as the prevailing party, they
are entitled to reasonable attorney fees for this appeal.
CONCLUSION
The Tsikayis are entitled to attorney fees pursuant to the CCRs and RCW 4.84.330 because
the partial final judgment dismissing the Krakes’ first counterclaim is a final judgment. We affirm
the superior court’s award of attorney fees and award the Tsikayis their attorney fees on appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J. We concur:
CRUSER, A.C.J.
LEE, J.
6 Article X, section 3 states, in relevant part, “The violators shall be responsible for all costs incurred in enforcing this Declaration . . . including reasonable attorney’s fees, whether or not litigation is commenced, and if so, during any arbitration, trial or appeal . . . .” CP at 565 (emphasis added).