FILED AUGUST 1, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
CAROL TILLEY, ) ) No. 39875-7-III Appellant, ) ) v. ) ) UNPUBLISHED OPINION EDELWEISS MAINTENANCE ) COMMISSION, a Washington non-profit ) corporation, ) ) Respondent. ) ) FEARING, J. — Edelweiss Maintenance Commission, a homeowner association,
severed homeowner Carol Tilley’s water service after she disobeyed directions to limit
her water use. The superior court dismissed without trial Tilley’s causes of action for
breach of contract and violation of the Consumer Protection Act. We affirm.
FACTS
This dispute concerns a homeowner association severing water services to a
residential lot within the association. We relate some of the facts forwarded by the
respondent association, but focus on the facts asserted by the appellant property owner
and view the evidence in a light favorable to the property owner. Because the superior
court dismissed the Consumer Protection Act (CPA) ch. 19.86 RCW, claim on a motion No. 39875-7-III Tilley v. Edelweiss Maintenance Commission
to dismiss, we focus on the property owner’s allegations on her complaint when
reviewing the CPA cause of action.
In 1986, Carol Tilley acquired a plot of land at 31 Crabapple Road (the Crabapple
Property) in Winthrop, within the Edelweiss community, a private development
encompassing two hundred other properties. The Edelweiss Covenants, Conditions, and
Restrictions (restrictive covenants), recorded in 1968, govern the development.
The restrictive covenants created the Edelweiss Maintenance Commission (EMC),
a nonprofit corporation, as a homeowner association pursuant to the Washington
homeowners association [Act], RCW 64.38. As a homeowner in Edelweiss, Carol Tilley
became a member of EMC. The covenants authorize EMC to establish assessments “for
the common benefit of such lots” including for utilities. Clerk’s Papers (CP) at 555. As
the homeowner association, EMC maintains the development’s shared spaces and
provides potable water to the lots.
Four paragraphs of the restrictive covenants declared:
6. Nuisances or Offensive Use: No nuisance or offensive use shall be conducted or suffered as to lots subject hereto. . . . 7. Utilities: Grantor shall provide . . . adequate water and electric power facilities to serve all such lots. For so long as a community water system is available, no private well or individual water source shall be created or used for lots subject hereto, and service to such community water system shall be connected, at each lot owner’s expense. . . . 8. . . .[T]he right of assessment and lien in favor of the Maintenance Commission as above provided may not be restricted or eliminated except as approved by resolution regularly adopted by the Board of Trustees of the Maintenance Commission, and … 9. Enforcement: In the event of violation of the terms hereof, the Maintenance Commission or the owner of any lot subject hereto, may
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institute proceedings for abatement or injunction or for damages and reasonable costs of any such action in any court having jurisdiction of the property subject hereto, the Maintenance Commission and each lot owner being recognized to have a proper interest in the matters herein provided for, and the matters provided for herein being recognized as specifically enforceable.
CP at 557-58 (emphasis added). When providing water, EMC operates independently of
the Washington Utilities and Transportation Commission.
EMC adopted and periodically amended bylaws for the operation of the
homeowner association. The latest version of the bylaws, adopted in 2018, confirmed
Carol Tilley’s membership in EMC. As a homeowner and member, Tilley is entitled to
one vote in membership business. The membership votes for a board of directors, which
oversees EMC’s affairs, and officers, who manage affairs.
The bylaws grant EMC “powers necessary and proper for the governance and
operation of the association.” CP at 567. The EMC bylaws also reads in part:
Section 1.9 Association Powers. Unless otherwise provided in the governing documents, the Association may: .... (3) Hire and discharge or contract with managing agents and other employees, agents, and independent contractors; .... (6) Regulate the use, maintenance, repair, replacement, and modification of common areas; (7) Cause additional improvements to be made as a part of the common areas; .... (10) Impose and collect any payments, fees, or charges for the use, rental, or operation of the common areas; .... (13) Exercise all other powers that may be exercised in this state by the same type of corporation as the association; and
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(14) Exercise any other powers necessary and proper for the governance and operation of the association.
CP at 566-67. The bylaws grant to the EMC Board of Directors:
The Board of Directors shall have the powers and duties provided for the administering authority of the Corporation in the Homeowners’ Associations Act and Nonprofit Corporations Act and in the Articles and Covenant, and all other power necessary for the administration of the affairs of the Association, and may do all such acts and things as are not prohibited by statute or by the governing documents required to be done in another manner.
CP at 570.
Carol Tilley began receiving potable water from EMC on the construction of her
home in 1998. Until 2019, Tilley adhered to the same terms for water usage as her
neighbors within the development.
In the summer of 2019, EMC initiated a project to upgrade and replace old water
pipelines near Carol Tilley’s Crabapple Property. The project involved heavy machinery,
including excavators, which raised dust near Tilley’s home. Tilley ran a sprinkler on her
driveway to suppress the road dust, inadvertently causing water to accumulate and flow
onto the street.
On July 23, 2019, Gregg Strome, EMC’s administration manager, emailed Carol
Tilley to express concern about the water runoff and instructed her to limit her use.
Strome wrote:
This email is sent with the understanding that your water is running in order to keep dust down in front of your house. I completely understand and will probably not say much on hot and dusty days[.]
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Currently the water is being run to excess. It’s creating a mud problem, erosion and is now starting to affect your neighbors’ property. FYI, the Methow river is running about 25 [percent] of average. There is a county wide drought that is recognized statewide. Along with that our water right does not cover watering our roadways. Please be aware and run irrigation water only when necessary for your yard or garden.
CP at 119. Tilley took no steps to reduce her water use in response to the July 23
message.
On August 23, 2019, Gregg Strome informed the Edelweiss community at large
about a critically low level in the water reservoir and directed residents to minimize
outdoor water use until repair of a pump. Strome wrote to all homeowners:
We are having issues filling the reservoir that services the homeowners that live on Trillum, Crabapple, Heather, and Highland up from Crabapple. We aren’t able to get repair people out until hopefully Monday. The board and management respectively request that if you live in the affected area, that you please curtail exterior water at least until we can get this problem with pumping resolved. In order to assure that everyone has adequate water for sanitary purposes, [m]anagement may use adjustments on water supply at your meters to regulate excessive water usage. If folks on that part of the system comply with this request, we should all have enough water to get us through the weekend and until repairs are completed. This is a community effort! Thanks for your understanding and compliance.
CP at 88-89 (emphasis added).
Carol Tilley once again ignored Gregg Strome’s request to reduce watering the
road. Mistakenly thinking she was the sole target of his directive, Tilley replied to
Strome’s message the same day:
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Thanks for the info Gregg. However[,] it is odd that you only sent ME these emaIls [sic]. I’ll forward this to the Okanogan Sheriff’s office and my attorney so we are all on the same page. At some point this will move from a civil matter to a criminal matter. Keeping everyone abreast of the latest Edelweiss managerial actions regarding watering will make it clear that things have evolved from a construction precipitated water shortage to a punitive one aimed at illegal selective enforcement.
CP at 95.
On August 24, 2019, EMC disconnected Carol Tilley’s water supply.
Administration Manager Greg Strome explained in an email to Tilley that the
discontinuation was a temporary measure, necessary to replenish the reservoir and ensure
a steady water supply for the entire neighborhood. Thereafter Tilley parked a vehicle
over the water meter vault linked to the Crabapple Property to block EMC’s access to the
meter.
On August 29, Gregg Strome wrote an email to Carol Tilley:
Edelweiss Maintenance Commission would like to get the water service to your property restored as soon as possible. The conditions that EMC have [sic] are 1. Your pickup needs to be moved out of the Edelweiss right of way and off the meter vault and shall not be parked over the vault in the future. 2. You will not water the roadways without the express written approval of the Edelweiss Maintenance Commission. 3. [You] agree to cooperate with necessary occasional watering restrictions such as our present situation of needing to repair the booster pump. All users in this pressure zone have been advised to not irrigate externally until the pump has been repaired and notification of homeowners by EMC that exterior watering is allowed.
CP at 93. Tilley ignored Strome’s August 29 message.
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On September 3, 2019, EMC manager Gregg Strome again requested by email that
Carol Tilley remove her vehicle from EMC’s right of way. Strome wrote:
The grader/ excavator work is starting today. We need to have your vehicles moved off of the road and right of way in order to do the work on Crabapple and Highland Rd.
CP at 102. Tilley ignored this second plea.
On September 16, 2019, EMC Administration Manager Gregg Strome ventured to
Carol Tilley’s Crabapple Property. Strome photographed a car positioned over the water
meter. Strome commented to Tilley that the car prevented EMC from restoring water
service to her property. After Strome left the area, Tilley moved the car from blocking
her water meter, restored the water supply to her Crabapple Property, and repositioned
the car over the water meter once more in order to continue to obstruct EMC’s access.
Edelweiss responded to Carol Tilley’s continuing blockade by disconnecting, at
the development’s mainline, the water supply to the Crabapple Property. Forced to
regroup, Tilley installed a cistern on her land.
On October 1, 2019, EMC Manager Gregg Strome informed Carol Tilley that
Edelweiss had completed the repairs to the pump station. Strome encouraged Tilley to
work with EMC to reconnect her water supply. The message read:
There is no reason that we could not reconnect your water service if you would move your vehicle obstructing our access to your water meter. We would however require that you agree to the conditions of service previously presented to you by Gregg Strome our administrative manager. These conditions are that; 1. There will be no unauthorized watering of streets by you either directly or as indirect runoff due to excessive irrigation on your property.
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2. You will comply with future water use restrictions considered necessary by EMC to maintain adequate water service in your service area. 3. You will not use or tamper with other water services in your neighborhood unless with the advance approval of the property owner. 4. You will not block access to the water meter serving your property by EMC staff.
CP at 143. EMC also demanded that Carol Tilley remove her cistern unless it was
equipped with the proper backflow prevention devices. Tilley replied to Edelweiss’
demands with a cryptic “HaHaHaHaHaHa!” CP at 143.
Following the October 1 email exchange, the dispute entered hibernation as Carol
Tilley traveled for the winter. Upon Tilley’s return to the Crabapple property in May
2020, EMC’s president sent her an email reiterating the requirements listed by Gregg
Strome in his October 1 missive.
In 2023, EMC circulated a statement of fees that reads in part:
Ongoing Costs
Annual Dues (2023)
$510.51 Residential Lots
$280.78 Campground Lots
Water Fees
$417.33/yr for all homeowners, full or part time, billed annually in January. Allocation of water is 84,000 gallons per household per year. Currently water is not metered.
Hose Bib fee (minimum fee) $107.32/yr. billed annually in January.
CP at 579.
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PROCEDURE
On August 10, 2020, Carol Tilley filed suit against EMC for severing her water
supply. Tilley alleged a breach of contract and violations of the CPA. In addition to
damages, she sought an injunction to reinstate her property’s water service. Because the
superior court dismissed the CPA claim on a CR 12(b)(6) motion, we quote some of the
paragraphs of the complaint:
2.1 . . . Tilley . . . currently occupies the Crabapple Property as her primary residence. 2.2 The Crabapple Property is a platted lot subject to the plan and covenants of EMC, a homeowner’s association that maintains road and water services for Edelweiss lot owners. 2.3 EMC provides exclusive water service to lot owners, charging a single annual fee for usage of up to 84,000 gallons per household. . . . .... 2.5 On August 24, 2019, following a dispute over Tilley’s use of water to suppress road dust, EMC abruptly, and without prior notice, disconnected the Crabapple Property from all access to water services. At the time of disconnection, Tilley was up to date on related water service fees. EMC has refused to restore water service to the Crabapple Property, even though it has continued to invoice Tilley for water service and Tilley has paid her water bill. 2.6 On or about June 9, 2020 Tilley requested detailed maps and water monitoring data from EMC for the purpose of evaluating EMC’s allegation that Tilley had used excessive amounts of water. EMC has refused to provide these records despite their contractual and legal obligations pursuant to Article 8 of the EMC by-laws and RCW 64.38.045(2). 2.7 Tilley has sustained damages as a result of EMC’s disconnection of water from her property. .... 3.2 EMC’s disconnection of water services to the Crabapple Property was an unfair or deceptive act or practice occurring in trade or commerce.
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3.3 EMC’s disconnection of water services to the Crabapple Property had a public interest impact because it had the capacity to injure others. 3.4 Tilley has sustained injuries to her property as a result of the EMC’s disconnection of water services to the Crabapple Property. 3.5 EMC’s disconnection of water services to the Crabapple Property caused the injury to Tilley. 3.6 EMC’s actions as alleged herein violated RCW 19.86.020. As a result of the EMC’s violations of the Consumer Protection Act, Tilley has sustained damages in an amount to be proven at the time of trial.
CP at 6-7.
EMC brought a motion, under CR 12(b)(6), to dismiss Carol Tilley’s CPA claim
on the basis that the allegations in the complaint failed to state a cause of action. The
trial court granted the motion. Thereafter, EMC filed a summary judgment motion to
dismiss the contract claim. Carol Tilley filed a cross-motion for partial summary
judgment on her contract cause of action. The superior court granted EMC’s motion and
denied Tilley’s motion. The court also granted EMC an award of reasonable attorney
fees and costs against Tilley.
LAW AND ANALYSIS
Carol Tilley appeals dismissal of her CPA claim, the summary judgment dismissal
of her contract cause of action, and the award of reasonable attorney fees and costs to
EMC. She also assigns error to the superior court’s refusal to grant her summary
judgment motion on her contract claim.
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In its brief to this court, EMC asserts facts with citations to records stricken by the
trial court. We do not consider those facts because EMC did not cross-appeal the trial
court’s grant of Carol Tilley’s motion to strike.
Consumer Protection Act
The superior court dismissed Carol Tilley’s CPA cause of action for failing to
state a claim in her complaint. A defending party bears a higher burden to prevail on a
motion to dismiss than winning a summary judgment motion. After reviewing Carol
Tilley’s complaint and despite EMC facing this high burden, we affirm the dismissal of
the CPA claim.
The law disfavors dismissals under CR 12(b)(6). West v. Washington Association
of County Officials, 162 Wn. App. 120, 128, 252 P.3d 406 (2011). Dismissal is
warranted only if the trial court concludes, beyond a reasonable doubt, that the plaintiff
cannot prove any set of facts justifying recovery. West v. Washington Association of
County Officials, 162 Wn. App. 120, 128 (2011). Any hypothetical situation conceivably
raised by the complaint defeats a CR 12(b)(6) motion if it is legally sufficient to support
plaintiff’s claim. Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978).
Conversely, we may not speculate on the existence of facts that do not appear in the
record. Gnecchi v. State, 58 Wn.2d 467, 471, 364 P.2d 225 (1961). Hypothetical or
otherwise, the complaining party must supply the facts to support her claim. Also, while
we accept the claimant’s factual allegations as true, we do not necessarily accept her legal
conclusions. Haberman v. Washington Public Power Supply System, 109 Wn.2d 107,
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120, 744 P.2d 1032, amended by 750 P.2d 254 (1987). Determining the applicability of a
statute to a given set of facts is a legal judgment. Leingang v. Pierce County Medical
Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997).
We restate the critical facts alleged in Carol Tilley’s complaint. EMC is a
homeowner association formed to maintain common property and enforce covenants in
Edelweiss, an Okanagon County residential development. EMC, the exclusive supplier
of water in the homeowner association, disconnected, without notice, Tilley’s water
service to her residence despite her being current on her fees after a dispute with Tilley
over her use of water to suppress road dust. EMC asserted that Tilley used excessive
water, but the association refused to restore water service to Tilley’s residence despite
continuing to invoice her and her payment of the invoices. According to Tilley, EMC’s
disconnection of water services to her property impacted a public interest because the
conduct had the capacity to injure others.
The two principal sections of the CPA lie in RCW 19.86.020 and 19.86.090. The
former statute proscribes: “unfair or deceptive acts or practices in the conduct of any
trade or commerce.” The latter statute grants “[a]ny person who is injured in his or her
business or property by a unfair or deceptive act or practice” a suit for damages.
Washington courts have ploddingly added structure and resolution to the
expansive and amorphous language of the CPA. Our case law has developed a
framework on how to analyze CPA claims. The Supreme Court has adopted five
elements that the plaintiff must satisfy in order to prevail under a private CPA action: (1)
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an unfair or deceptive act or practice (2) in trade or commerce, (3) which affects the
public interest, (4) an injury to plaintiff’s business or property, and (5) a causal link
between the unfair or deceptive act or practice and the injury. Hangman Ridge Training
Stables, Inc. v. Safeco Title Insurance Co., 105 Wn.2d 778, 784-85, 719 P.2d 531 (1986).
EMC argues that Carol Tilley failed to plead facts sufficient to fulfill elements one and
three of the five-part test. We agree that Tilley fails to satisfy element three, the public
interest component. Therefore, we do not address whether Tilley fulfills element one, the
unfair or deceptive act constituent.
Prior to 1970, the CPA did not allow private suits for damages for violations of
RCW 19.86.020. In 1970, the legislature recognized the need for an additional
enforcement mechanism and amended RCW 19.86.090 to provide for a private right of
action to recover damages for and enjoin violations of RCW 19.86.020. LAWS OF 1970,
1st Ex. Sess., ch. 26, § 2. The amendment encourages individual citizens to bring suit to
enforce the CPA. Dix v. ICT Group, Inc., 160 Wn.2d 826, 836, 161 P.3d 1016 (2007).
Still because of the nature of the CPA, the claimant must show the challenged acts or
practices affect the public interest. Hangman Ridge Training Stables, Inc. v. Safeco Title
Insurance Co., 105 Wn.2d 778, 790 (1986). The private right of action seeks to redress
injury to the public. Hockley v. Hargitt, 82 Wn.2d 337, 349-50, 510 P.2d 1123 (1973).
In a private action, a plaintiff can establish that the lawsuit would serve the public
interest by showing a likelihood that other plaintiffs have been or will be injured in the
same fashion. Trujillo v. Northwest Trustee Services, Inc., 183 Wn.2d 820, 835, 355 P.3d
13 No. 39875-7-III Tilley v. Edelweiss Maintenance Commission
1100 (2015). Early on, the Supreme Court wrote that other persons must be injured in
“exactly” the same fashion. Hangman Ridge Training Stables, Inc. v. Safeco Title
Insurance Co., 105 Wn.2d 778, 790 (1986). Generally, private disputes lack a public
interest. Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wn. App. 732, 744,
935 P.2d 628 (1997). Ordinarily, a breach of a private contract affecting no one but the
parties to the contract is not an act or practice affecting the public interest. Behnke v.
Ahrens, 172 Wn. App. 281, 293, 294 P.3d 729 (2012).
The court considers four factors to assess the public interest element when a
complaint involves a private dispute: (1) whether the defendant committed the alleged
acts in the course of its business, (2) whether the defendant advertised to the public in
general, (3) whether the defendant actively solicited this particular plaintiff, and (4)
whether the plaintiff and defendant have unequal bargaining positions. Michael v.
Mosquera–Lacy, 165 Wn.2d 595,605, 200 P.3d 695 (2009). In another decision, the
Supreme Court restated the factors and added a fifth:
(1) Were the alleged acts committed in the course of defendant’s business? (2) Are the acts part of a pattern or generalized course of conduct? (3) Were repeated acts committed prior to the act involving plaintiff? (4) Is there a real and substantial potential for repetition of defendant’s conduct after the act involving plaintiff? (5) If the act complained of involved a single transaction, were many consumers affected or likely to be affected by it?
Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 790
(1986). The plaintiff need not establish all of these factors, and none is dispositive.
Trujillo v. Northwest Trustee Services, Inc., 183 Wn.2d 820, 836 (2015). The law fails to
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instruct whether the court reviews the four or five factors if the plaintiff cannot show that
other persons have been or will be injured in the same manner.
We review, in chronological order, a series of Washington decisions that aid in
adjudging whether a private dispute impacts the public interest for purposes of the CPA.
In Banks v. Nordstrom, Inc., 57 Wn. App. 251, 264, 787 P.2d 953 (1990), Nordstrom
accused Lisa Banks of shoplifting. A security officer had caught Lisa’s sister shoplifting,
and the sister carried Lisa’s identification on her. Nordstrom rebuffed Lisa’s attempt to
correct the record. Lisa sued Nordstrom under numerous theories, including a claim
under the CPA. The court summarily dismissed the claim because Nordstrom had not
engaged in such conduct before and the retailer’s actions did not form a general course of
conduct.
In Eifler v. Shurgard Capital Management Corp., 71 Wn. App. 684, 688, 696, 861
P.2d 1071 (1993), this court found that sufficient evidence supported a ruling that a
storage facility had violated the CPA. The facility placed a Yellow Pages advertisement
that read: “‘We Have Safe Storage All Locked Up.’” The ad further proclaimed:
“‘fenced and lighted,’” with a “‘resident manager’” and “‘electronic security and
gates.’” In a separate flier, the company stated, “‘Shurgard managers live right on
site,’” “‘making sure everything is safe and secure.’” (Emphasis in original) These
representations were false. Shurgard’s conduct impacted the public because it
disseminated to the entire public its company name, its yellow pages advertisement, and
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its fliers. All were part of a generalized course of conduct, and all were capable of
repetition with respect to numerous members of the public.
In Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wn. App. 732, 935
P.2d 628 (1997), the tire manufacturer sued a local dealer for amounts owed for the
wholesale purchase of tires for resale. The dealer asserted counterclaims for, among
other causes of action, violations of the CPA. The dealer complained that the
manufacturer directly sold tires to customers in the dealer’s geographic territory, allowed
other dealers to expand into dealer’s territory, and placed an employee of the dealer in
another dealership where the employee solicited dealer’s customers. The Court of
Appeals affirmed the trial court’s summary dismissal of the CPA cause of action. The
dealer was an experienced businessman who had contracted with the manufacturer for
years. The dealer was not vulnerable to exploitation.
In Michael v. Mosquera-Lacy, 165 Wn.2d 595 (2009), patient Patsy Michael
alleged that her dentist used cow bone as part of a bone graft when she specifically
informed the dentist she did not want the use of any animal product. The Supreme Court
affirmed summary dismissal of the CPA claim because of the failure to satisfy the public
interest element. The patient failed to identify any real and substantial potential for
repetition of the conduct and the same injury to other patients. The dentist offered dental
care to the general public, but did not advertise to the public and did not actively solicit
Patsy Michael as a patient.
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In Behnke v. Ahrens, 172 Wn. App. 281 (2012), a client contended that an attorney
violated the CPA when recommending the client engage in a transaction, in which the
attorney possessed a financial interest. This court affirmed a summary judgment
dismissal of the claim because of the failure to show the attorney repeated his conduct.
In Bavand v. OneWest Bank, 196 Wn. App. 813, 385 P.3d 233 (2016), a borrower
complained that the bank engaged in an unfair act when demanding that she sign two
separate notes for the same debt. The court dismissed a CPA claim because the borrower
failed to show that the facts underlying her “two notes” theory have been replicated.
Carol Tilley’s complaint portrays a quarrel entailing unique facts between one
individual resident and her homeowner association. EMC is not a sophisticated business
that markets to the public in general but rather functions as a group of homeowners
wishing to improve the neighborhood. EMC does not advertise to serve the general
public with water delivery. EMC does not seek a profit.
We recognize that EMC holds a monopoly for water service in the Edelweiss
community. Still Carol Tilley is not a vulnerable contracting party with EMC. She is
part of the homeowner association and can vote for directors and officers. She could seek
to be a director or officer. She can organize with other homeowners to control the affairs
of EMC.
In paragraph 2.2 of her complaint, Carol Tilley alleges that EMC serves other lot
owners in the development’s homeowner association. In paragraph 3.3 of the complaint,
Tilley alleges that EMC’s disconnection of water services to her residence impacts the
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public interest because the conduct had the capacity to injure others. According to Tilley,
her neighbors along Crabapple Road are now in jeopardy of having their water service
unilaterally severed without notice for similar attempts to control dust around their
homes.
Although Carol Tilley suggests that EMC may discontinue the water of other
property owners, she does not plead that the association will do so under the same
circumstances as her plight. More importantly, as in Banks v. Nordstrom, Inc., Tilley
does not allege that EMC has engaged in such behavior before or that the conduct will
likely reoccur. Tilley did not plead that EMC engaged in a general course of conduct.
She did not identify in her complaint any real and substantial potential for repetition of
the conduct and the same injury to others.
We agree with Carol Tilley that the cases discussed above involve the trial court
granting a summary judgment motion, rather than a CR 12(b)(6) motion to dismiss.
None of the decisions, however, rejected the possibility of granting a motion to dismiss
under the case’s circumstances. Also, determining the applicability of a statute to a given
set of facts is a legal judgment. Leingang v. Pierce County Medical Bureau, Inc., 131
Wn.2d 133, 150 (1997).
Contract
Carol Tilley asserts that EMC violated two contracts when terminating her water
service. The first purported agreement outlined the 2023 fee schedule for water delivery
to each homeowner for the allocated 84,000 gallons of water. The second agreement
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arises from paragraph 7 of the restrictive covenants that reads in part that EMC shall
provide adequate water facilities to serve all lots and demands that each lot owner
connect to the development’s water system. Tilley argues that, since connecting to the
water system is obligatory and she met her obligations by paying for her water allocation,
EMC lacked the prerogative to disconnect her service. Tilley notes that the covenants
authorize EMC to institute legal proceedings to enforce the covenants, and then she
suggests this remedy is exclusive such that EMC could not terminate water service
without a court order.
EMC and Carol Tilley do not quarrel over the underlying facts. The parties also
agree as to the documents that govern their relationship. The dispute requires this court
to determine whether those documents allow EMC the right to terminate water service to
a homeowner when the homeowner disobeys instructions and whether EMC must first
obtain a court order before disconnecting service. We conclude that the governing
documents together with homeowner association statutes granted EMC the right to
terminate service without filing suit.
Courts review restrictive covenants as if contracts. Twin W Owners’ Ass’n v.
Murphy, 26 Wn. App. 2d 494, 510, 529 P.3d 410 (2023), review denied, 534 P.3d 807
2023). A contract claimant must establish a valid contract between the parties, breach,
and resulting damage. Lehrer v. Department of Social & Health Services, 101 Wn. App.
509, 516, 5 P.3d 722 (2000).
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Carol Tilley does not challenge the lawfulness of EMC’s water use restrictions.
The undisputed evidence established that Tilley violated restrictions imposed on, not only
her, but other homeowners because of a water shortage. Tilley’s use also flooded a street.
Neither the Edelweiss restrictive covenants nor the EMC bylaws expressly grant EMC
the right to terminate services, but the broad powers afforded EMC necessarily implied
that right.
The first purported agreement outlined the 2023 fee schedule for water delivery to
each homeowner for the allocated 84,000 gallons of water. Of course, Edelweiss
disconnected water service in 2019, four years before the publishing of the fee schedule.
For this reason alone, the schedule cannot form the basis for a contract claim in these
circumstances. Carol Tilley presents no evidence that a similar fee schedule controlled
water service in 2019. The 2023 fee schedule also fails to address the remedies of
Edelweiss if Tilley did not follow directions of the homeowner association.
We move to the restrictive covenants and bylaws. Paragraph 6 of the restrictive
covenants prohibit nuisances and offensive uses of property. The EMC bylaws grant
EMC authority to “regulate the use, maintenance, repair, replacement, and modification
of common areas.” CP at 566. The bylaws grant EMC broad governance powers
including all “powers that may be exercised in this state by the same type of corporation
as the association” and “any other powers necessary and proper for the governance and
operation of the association.” CP at 567. The August 23 direction to homeowners in
Crabapple came from the Board of Directors. The EMC Board of Directors holds “all”
20 No. 39875-7-III Tilley v. Edelweiss Maintenance Commission
“power necessary for the administration of the affairs of the Association, and may do all
such acts and things as are not prohibited by statute or by the governing documents
required to be done in another manner.” CP at 570. No covenant, bylaw, or statute
precludes EMC from terminating water service to a homeowner when the homeowner
refuses to comply with rules applied to all homeowners and thereby creates a nuisance.
The bylaws confirm the existence of EMC as a homeowner association created
pursuant to the Washington homeowners association, RCW 64.38. The HOA act grants
broad powers to a homeowner association. The powers include regulating “the use,
maintenance, repair, replacement, and modification of common areas.” RCW
64.38.020(6). “‘Common areas’ means property owned, or otherwise maintained,
repaired or administered by the association.” RCW 64.38.010(4). Common areas
embrace roads and a water system. Bangerter v. Hat Island Community Association, 199
Wn.2d 183, 190, 186, 504 P.3d 813 (2022), aff’d in part, rev’d in part, 199 Wn.2d 183,
504 P.3d 813 (2022). Under the act, a homeowner association may also exercise “any
other powers necessary and proper for the governance and operation of the association.”
RCW 64.38.020(14).
To repeat, paragraph 7 of the restrictive covenants addresses utilities and reads in
part that the “Grantor shall provide . . . adequate water . . . to serve all such lots.” CP at
557 (emphasis added). Carol Tilley emphasizes the word “shall” and argues that the
provision precluded discontinuation of her water. EMC highlights the word “grantor”
and distinguishes between grantor and EMC. According to EMC, the grantor is
21 No. 39875-7-III Tilley v. Edelweiss Maintenance Commission
Edelweiss Company, the developer who built the infrastructure of Edelweiss, not the later
homeowner association. When the covenants wished to refer to EMC, the covenants
used the phrase.
EMC contends that the drafter of the restrictive covenants knew to distinguish
between the developer and the homeowner association, because the covenants use both
terms in separate contexts. So, when the covenants refer to “grantor,” the reader must
conclude the language applies only to Edelweiss Company. We agree. For example, the
restrictive covenants also state: “The Maintenance Commission is empowered to
establish assessments upon lots in platted land.” CP at 555. Liens “may be foreclosed by
the Maintenance Commission.” CP at 556. The “Maintenance Commission may
establish permissive rules for the maintenance of trained riding horses.” CP at 557. The
“Maintenance Commission . . . may institute proceedings for abatement or injunction or
for damages.” CP at 558. The restrictive covenants only directed the “Grantor” to
provide roads and water service to the development.
Assuming the duty to provide water service extended to EMC, we read into this
obligation a corresponding duty on the homeowner to pay for the service and abide by
rules of the homeowner association. Every contract incorporates an implied duty of good
faith and fair dealing. Seattle Tunnel Partners v. Great Lakes Reinsurance (UK) PLC, 26
Wn. App. 2d 319, 345, 527 P.3d 134 (2023). The duty obligates parties to the contract to
cooperate with each other so that each may obtain the full benefit of performance. In re
Estate of Carter v. Carden, 11 Wn. App. 2d 573, 583, 455 P.3d 197 (2019).
22 No. 39875-7-III Tilley v. Edelweiss Maintenance Commission
Carol Tilley next contends that the governing documents limited EMC’s remedy
to a suit for an injunction. She emphasizes two passages. First, the restrictive covenants
declared that: “In the event of violation of the terms hereof, the Maintenance Commission
or the owner of any lot subject hereto, may institute proceedings for abatement or
injunction or for damages….” CP at 558 (emphasis added). Second, the Bylaws provide
that: “[T]he Association may: . . . (11) . . . levy reasonable fines in accordance with a
previously established schedule adopted by the board of directors….” CP at 566
(emphasis added).
EMC underlines that the two passages, on which Carol Tilley rely, employ the
permissive “may,” not the mandatory “shall.” Courts construe the word “may” as
permissive. Case v. Dundom, 115 Wn. App. 199, 202, 58 P.3d 919 (2002). The
restrictive covenants and the bylaws include many examples of the mandatory “shall.”
For example, each owner shall be a member of EMC. Thus, the drafters knew when they
wished to make a provision mandatory or permissive.
Paragraph 6 of the restrictive covenants prohibit the creating of a nuisance. Carol
Tilley does not argue against her having created a nuisance by the water running upon the
road. She does not contend that a homeowner association may not take steps, short of
filing suit, to end a nuisance harming the common areas of the association.
We end with a quote from a treatise on restrictive covenants:
Aside from management of the common property, the chief function of a community association is ordinarily enforcement of the servitudes and the rules and regulations governing the community. If the power is not
23 No. 39875-7-III Tilley v. Edelweiss Maintenance Commission
granted by the declaration, it will be implied to meet the likely expectations of purchasers of property in the community. . . . Using legal proceedings to enforce compliance with common interest community obligations should ordinarily be the last resort because of their expense and hostile character. The association has implied powers to use less drastic means to encourage compliance and deter violations by community members.
RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 6.8, cmt. a (2000).
What are reasonable enforcement methods will depend on the circumstances of the particular community and, in the first instance, is best determined by the association.
RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 6.8, cmt. b.
Attorney Fees
The trial court awarded Edelweiss attorney fees under RCW 64.38.050, which
authorizes such an award in any action raising a claim under the homeowners association
act. Carol Tilley maintains the trial court lacked authority to award fees because she
never raised a claim under the act.
Carol Tilley misreads her own pleadings. Tilley alleged, before the superior court
and this court, that Edelweiss violated RCW 64.38 by unilaterally shutting off her water
service. A party subjects herself to an award of fees when she invokes the chapter as a
basis for her claim against the homeowner association. Bangerter v. Hat Island
Community Association, 14 Wn. App. 2d 718, 746 (2020).
EMC also seeks an award of reasonable attorney fees and costs on appeal. We
grant this request.
24 No. 39875-7-III Tilley v. Edelweiss Maintenance Commission
CONCLUSIONS
We affirm the superior court’s dismissals of the CPA claim and the contract claim.
We award EMC reasonable attorney fees and costs on appeal.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
______________________________ Fearing, J.
WE CONCUR:
______________________________ Cooney, J.
______________________________ Pennell, J.