James Krell, V. Port Ludlow Townhome Assn

CourtCourt of Appeals of Washington
DecidedJanuary 19, 2022
Docket54281-1
StatusUnpublished

This text of James Krell, V. Port Ludlow Townhome Assn (James Krell, V. Port Ludlow Townhome Assn) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James Krell, V. Port Ludlow Townhome Assn, (Wash. Ct. App. 2022).

Opinion

Filed Washington State Court of Appeals Division Two

January 19, 2022

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II JAMES KRELL and MARCIA KRELL, No. 54281-1-II husband and wife and their marital community,

Appellants,

v.

PORT LUDLOW TOWNHOME UNPUBLISHED OPINION ASSOCIATION (PLTHA), an entity formed under the laws of the State of Washington; KIRK BOYS and KIM BOYS, husband and wife,

Respondents.

VELJACIC, J. — James and Marcia Krell (the Krells) live in a townhome adjacent to Kirk

and Kim Boys (the Boys) in a planned development. The Krells possess an easement over part of

the Boys’s property for ingress and egress through a courtyard. The Port Ludlow Townhome

Association (the PLTHA), which manages the townhomes, built a gate that spanned a gap in a

fence surrounding the courtyard. The Krells filed a complaint against the Boys and the PLTHA to

quiet title and for an injunction. The Boys and the PLTHA moved for summary judgment. In this

interlocutory appeal, the Krells appeal the trial court’s order granting the Boys’s and the PLTHA’s

motions for summary judgment. The order dismissed the Boys from this action, and dismissed

some of the Krells’s claims against the PLTHA. 54281-1-II

The Krells argue that the trial court erred in dismissing their quiet title cause of action based

on the Boys’s and the PLTHA’s concession to the existence of the easement; the trial court erred

in dismissing their declaratory judgment action against the Boys because a genuine issue of

material fact remains as to whether the Boys’s omissions in opposing the PLTHA’s installation of

the gate unreasonably interferes with their easement rights; and the trial court erred in awarding

attorney fees and costs to the Boys under the declaration of covenants, conditions, and restrictions.

The Krells and the Boys both request attorney fees on appeal.

We hold that the trial court did not err in dismissing the Krells’s quiet title claim against

the Boys and the PLTHA. However, we hold that the trial court erred in dismissing the Boys

because they are necessary parties to resolve the Krells’s declaratory judgment action, that the

Boys owed the Krells an affirmative duty to facilitate the use of their easement, and there are issues

of material fact remaining as to whether the Boys, by permitting the PLTHA to install a gate on

their property and within the Krells’s easement, violated their duty against unreasonably burdening

the easement. We also hold that the trial court erred in awarding the Boys’s attorney fees and

costs. And finally, we deny both parties’ request for attorney fees on appeal. Accordingly, we

affirm the trial court’s dismissal of the quiet title action, reverse the trial court’s dismissal of the

declaratory judgment action against the Boys and its dismissal of the Boys as parties, reverse the

trial court’s award of attorney fees, deny attorney fees on appeal, and remand for further

proceedings.

2 54281-1-II

FACTS

I. FACTUAL BACKGROUND

Port Ludlow Village is a planned community in Port Ludlow, Washington. The Village

has 25 townhomes, a single-family residence, and a hotel. The Village is governed by the Ludlow

Bay Village Association, which is known as the “Master Association.” The townhomes are also

governed by the PLTHA, a separate homeowner’s association. Both the Master Association and

the PLTHA are governed by a declaration of covenants, conditions, and restrictions (Declaration).1

The townhomes in the Village are contained in six separate buildings. Relevant here, two

of the buildings front directly onto a portion of Heron Road, which is the primary access point for

the townhomes and hotel. Each of those two buildings has three courtyards, which totals six

courtyards. Several townhome courtyards are shared by two owners. Each contains a pathway

that leads into the courtyard and then splits to access each townhome’s front door. The manner in

which the underlying parcels were plotted required one townhome to own the courtyard while the

other was granted an access easement. Five of the six courtyards had access gates installed when

the buildings were constructed.

The Krells and the Boys are neighboring townhome owners in the Village. The Krells live

on 36 Heron Road, which is referred to as parcel TH-18. The Boys live on 34 Heron Road, which

is referred to as parcel TH-17. The Krells and the Boys share a courtyard as described above. The

parties do not dispute that the Boys own the courtyard at issue. The parties also do not dispute that

section 14.3 of the Declaration establishes an access easement for the benefit of the Krells and

1 The parties use the term CC&Rs throughout their briefing. They are referencing the Declaration, which is the term we use herein.

3 54281-1-II

their invitees.2 The courtyard at 34 and 36 Heron Road was the only townhome which did not

have an access gate.

II. THE BOYS’S AND THE PLTHA’S APPLICATION TO INSTALL A GATE

On July 6, 2016, the Boys submitted an application to the Architectural Review Committee

(“ARC”) of the Master Association seeking permission to install an access gate between their

courtyard and Heron Road.3 The Boys stated that the proposed gate would “match the existing

cedar gates on other townhomes.” Clerk’s Papers (CP) at 181. The Boys also stated that the gate

would “provide for additional safety for children who might run onto Heron [Road]”—namely,

their grandchildren. CP at 181. The ARC denied the Boys’s application.

2 Section 14.3 of the Declaration provides that:

Access And Use Easements Within The Town Home Lots. Each town home is located on a cluster of several Town Home Lots. An easement is hereby reserved, conveyed and created upon, across and over each Town Home Lot within a cluster of Town Home Lots on which a town home is located, in favor of, and for the benefit of, each Town Home Lot within the cluster and the Owners, Residents, Occupants, tenants, guests and invitees thereof, for purposes of ingress, egress, utilities and use of driveways, walkways and common courtyards, if applicable,adjacent to each town home.

Clerk’ Papers (CP) at 140. 3 The ARC is established by section 11.2 of the Declaration and governs the preparation, submission, and determination of an application for architectural-related alterations or modifications. Relevant here, section 11.3.1 of the Declaration provides that “no alteration or modification to an existing dwelling, building, structure, or other improvement within Ludlow Bay Village previously constructed by [the Master Association] or approved by the [ARC] shall be made unless complete plans and specifications therefor have been first submitted to and approved in writing by the [ARC].” CP at 136.

4 54281-1-II

On August 10, 2016, Albert Wagner, the President of the PLTHA, submitted an application

to the ARC for permission to install a gate on the Boys’s courtyard. The application stated that

the proposed gate would be “identical to the gate at 30 Heron Road. This gate installation will

complete the standardization of fencing and courtyard entries for building 400.” CP at 149.

The Krells opposed adding a gate to the courtyard. James Krell stated that he and his wife,

Marcia Krell, purchased 36 Heron Road because it did not have an access gate. Several other

townhomes at the Village had gates, and the gates were a “deal-breaker” for them. CP at 288.

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James Krell, V. Port Ludlow Townhome Assn, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-krell-v-port-ludlow-townhome-assn-washctapp-2022.