Todd Skoglund, V. Sahalee Maintenance Association

• Court: Court of Appeals of Washington
• Decided: June 17, 2024
• Docket: 85776-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TODD K. SKOGLUND, a No. 85776-2-I Washington resident, DIVISION ONE Appellant, v. UNPUBLISHED OPINION SAHALEE MAINTENANCE ASSOCIATION, a Washington non- profit corporation,

Respondent.

SMITH, C.J. — Todd Skoglund appeals the trial court’s orders summarily

dismissing his claims against Sahalee Maintenance Association, denying

Skoglund’s motion to strike certain exhibits from the Association’s counsel’s

declaration, declining to reconsider the dismissal, and awarding attorney fees to

the Association. Skoglund did not timely appeal the trial court’s orders

dismissing his claims, denying his motion to strike, and denying reconsideration,

and he does not show that the trial court erred by awarding the Association its

attorney fees. Accordingly, we affirm the attorney fee award and do not reach

Skoglund’s other arguments.

FACTS

Skoglund is a homeowner in the Sahalee development in Sammamish,

Washington. The Association operates and maintains the residential portion of

Sahalee’s common property pursuant to Sahalee’s covenants, conditions, and No. 85776-2-I/2

restrictions (CCRs). The CCRs provide, “Dogs shall not be allowed to roam

loose outside the limits of a residential lot or building site on which they are kept”

(dog provision).

In August 2022, Skoglund filed a complaint for declaratory relief against

the Association. He alleged among other things that “a few months ago, [his] 5-

month-old Bernese Mountain puppy ‘Leo’ ran into the neighbor’s yard after

escaping his enclosure” and that “[t]he [Architectural Control Committee] fined

[him] $250 for a puppy getting loose purely by accident.” He also alleged that

“there were two letters and one fine before Leo . . . got out” and that “at one point

in the last year or so,” another of his Bernese Mountain dogs “escaped through

the front door and ran towards a neighbor walking her small dog.” Skoglund

alleged that the Association’s board or its Architectural Control Committee (ACC)

had passed a “leash rule” stating, “Dogs are to be kept on their property or on a

leash.” (Emphasis omitted.) And, he requested declaratory judgment “as

follows:” a. [The dog provision] of the CCRs does not require an owner to leash their dog while walking the expected properties. b. The [leash] rule enacted by the ACC directly conflicts with [the dog provision]. c. The [Association] and ACC do not have the authority to [alter] or make [the dog provision] more restrictive than written[.] d. The [leash] rule enacted is invalid and void as a matter of law. e. The ACC fine system is arbitrary and capricious and needs to be published[.] f. The [A]ssociation’s accrual date to start fining owners is arbitrary and capricious . . . . g. The [A]ssociation shall refund Mr. Skoglund $250.

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h. The [leash] rule is stricken and shall be replaced by the CCRs, which directly addresses the issue.

In May 2023, the Association moved for summary judgment. It argued

that Skoglund was not entitled to declaratory relief because the record

established that the Association fined Skoglund for violating the CCRs’ dog

provision, not the allegedly unauthorized leash rule, and Skoglund’s assertions

otherwise were not supported by any admissible evidence. The Association also

argued that because its fine procedure was described in the CCRs and its fine

schedule published in the annual directory, and because it followed its

established procedure, Skoglund could not show that the fine system was

arbitrary and capricious. Finally, the Association requested an award of attorney

fees under the CCRs. Skoglund opposed the Association’s motion and moved to

strike various exhibits attached to the Association’s counsel’s summary judgment

declaration.

In June 2023, the trial court denied Skoglund’s motion to strike, granted

the Association’s motion for summary judgment, and reserved ruling on the issue

of attorney fees. It later denied Skoglund’s motion for reconsideration of the

order on summary judgment and awarded the Association its fees. Skoglund

appeals.

DISCUSSION

Scope of Review

Skoglund argues that the trial court erred by summarily dismissing his

claims against the Association and by denying his motion to strike and his motion

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for reconsideration.1 The Association asserts that because Skoglund did not

timely appeal the foregoing decisions, they are not within the scope of this court’s

review. We agree with the Association.

A party may, as relevant here, appeal only from the superior court

decisions listed in RAP 2.2(a). The list includes “the final judgment entered in

any action or proceeding.” RAP 2.2(a)(1). A summary judgment order that

wholly resolves a lawsuit on the merits is a final judgment under this subsection.

Denney v. City of Richland, 195 Wn.2d 649, 657, 462 P.3d 842 (2020). Such an

order is appealable “regardless of whether [it] reserves for future determination

an award of attorney fees or costs.” RAP 2.2(a)(1). A timely appeal from a final

judgment will bring up for review certain other trial court decisions, including

interlocutory rulings that prejudicially affect the final judgment and a trial court’s

decision on a timely motion for reconsideration of the final judgment. RAP 2.4(b),

(f). Similarly, a notice of appeal designating an order deciding a timely motion for

reconsideration will bring the underlying final judgment up for review. RAP

2.4(c).

1 In his notice of appeal, Skoglund also designated an order calling for a

response to his motion for reconsideration and an order extending the time for Skoglund to file a response to the Association’s motion for attorney fees. But in his opening brief, Skoglund does not assign error to these orders or provide any argument or legal authority related to them. Accordingly, we do not consider them. See RAP 10.3(a)(4), (6) (requiring brief of appellant to include assignments of error and argument in support of the issues presented for review, together with citations to legal authority); cf. Cowiche Canyon Conservancy v. Bosley 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (party waived assignment of error by not presenting any argument in support thereof).

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To initiate review, the party seeking review must file a notice of appeal

“within the time provided by [RAP] 5.2.” RAP 5.1(a). Under RAP 5.2, a notice of

appeal must be filed in the trial court within the longer of (1) 30 days after entry of

the at-issue order and (2) 30 days after the entry of an order deciding a timely

motion for reconsideration of the at-issue order. RAP 5.2(a), (e); see also

Stedman v. Cooper, 172 Wn. App. 9, 14, 292 P.3d 764 (2012) (“[A] timely motion

for reconsideration in the trial court will extend [the time to file a notice of appeal]

until 30 days after entry of the order deciding that motion.”).

Here, the trial court entered its order granting the Association’s motion for

summary judgment on June 23, 2023. Although that order reserved ruling on

attorney fees and costs, it wholly resolved the merits of Skoglund’s lawsuit by

dismissing it with prejudice. Accordingly, it was an appealable final judgment.

See Denney, 195 Wn.2d at 659-60 (appeal deadline triggered by summary

judgment order that wholly resolved the lawsuit on the merits); see also Carrara,

LLC v. Ron & E Enters., Inc., 137 Wn. App. 822, 826, 155 P.3d 161 (2007)

(summary judgment order that dismissed plaintiff’s claims with prejudice was a

final, appealable judgment).

Skoglund timely moved for reconsideration on June 30, 2023. See

CR 59(b) (motion for reconsideration must be filed within 10 days). On July 25,

2023, the trial court entered an order denying his motion. Thus, Skoglund had

until August 24, 2023 to file a notice of appeal if he desired our review of the trial

court’s orders on the Association’s motion for summary judgment and on

Skoglund’s motion to strike and motion for reconsideration. But Skoglund did not

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file his notice of appeal until September 14, 2023, so it was clearly untimely.

While Skoglund did timely appeal from the trial court’s subsequent order

awarding the Association its attorney fees, that appeal did not extend review to

the trial court’s earlier orders. See RAP 2.4(b) (“A timely notice of appeal of a

trial court decision relating to attorney fees and costs does not bring up for review

a decision previously entered in the action that is otherwise appealable . . .

unless a timely notice of appeal has been filed to seek review of the previous

decision.”); see also 2A ELIZABETH A. TURNER, W ASHINGTON PRACTICE: RULES

PRACTICE RAP 2.4 § 9, at 206 (9th ed. 2022) (“The practical lesson is clear—

counsel should appeal from the judgment on the merits, even if the issue of

attorney fees is still pending.”).

Skoglund provides no analysis in response to the Association’s argument

that the only order properly before us is the trial court’s order on attorney fees.

Instead, he merely asserts that “[t]he case law cited by the [Association] is not

applicable to the facts at hand” and, citing Denney, that it “is inapplicable as has

been ruled already.” But in Denney, our Supreme Court confirmed that a

summary judgment order dismissing all of a party’s substantive claims with

prejudice is a final judgment that triggers the time to file a notice of appeal. 195

Wn.2d at 657, 659. Although the court held under the facts of that case that the

appellant’s misinterpretation of the RAPs was an excusable error “[i]n light of the

confusion introduced into our appellate rules by CR 54” regarding entry of

judgment, id. at 659, it also “caution[ed] future, similarly situated appellants that

our appellate rules establish the correct procedure on review.” Id. Skoglund is

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one of those future, similarly situated appellants, yet he does not articulate much

less establish any reason to excuse his failure to timely appeal the trial court’s

orders on the Association’s motion for summary judgment and on his motions to

strike and for reconsideration.2 Accordingly, we do not reach Skoglund’s

challenges to those orders. Cf. Buckner, Inc. v. Berkey Irrig. Supply, 89 Wn.

App. 906, 911, 951 P.2d 338 (1998) (“A necessary prerequisite to appellate

jurisdiction is the timely filing of the notice of appeal.”); RAP 18.8(b) (“The

appellate court will only in extraordinary circumstances and to prevent a gross

miscarriage of justice extend the time within which a party must file a notice of

appeal. . . . The appellate court will ordinarily hold that the desirability of finality of

decisions outweighs the privilege of a litigant to obtain an extension of time under

this section.”).

Attorney Fee Award

Skoglund next contends that the trial court erred by awarding the

Association its attorney fees. We disagree.

“Washington follows the American rule that attorney fees are recoverable

in a suit only when authorized by statute, contract, or equity.” Mehlenbacher v.

DeMont, 103 Wn. App. 240, 244, 11 P.3d 871 (2000). When reviewing an award

of attorney fees, we generally ask first whether the prevailing party was entitled

2 After Skoglund filed his notice of appeal, the Association moved to

dismiss “portions” of Skoglund’s appeal as untimely. A commissioner denied the motion but stated in her ruling that “the parties’ arguments as to the proper scope of appeal may be fully presented in briefing on the merits.” Notation Ruling, No. 85776-2-I (Oct. 16, 2023). Nevertheless, Skoglund does not renew the arguments he presented to the commissioner about why his failure to timely appeal should be excused.

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to fees, and second, whether the award of fees was reasonable. Pub. Util. Dist.

1 of Klickitat County v. Int’l Ins. Co., 124 Wn.2d 789, 814, 881 P.2d 1020 (1994).

Here, Skoglund does not challenge the reasonableness of the fee award; he

argues only that the Association was not entitled to fees. We review de novo a

trial court’s decision on a party’s entitlement to fees. Mehlenbacher, 103 Wn.

App. at 244.

The trial court awarded fees under the CCRs, which provide that “[t]he

prevailing parties in any litigation involving enforcement of these covenants shall

be allowed reasonable attorney fees and court cost.” In support of reversal,

Skoglund asserts that a final judgment is a necessary prerequisite to a fee

award, and there was no final judgment because “[t]he merits were not reached.”

He similarly asserts that the Association was not the prevailing party because

“[t]he Court did not resolve any issues but pushed them off for another day.”

These assertions are without merit. As discussed, the trial court’s order

dismissing Skoglund’s claims with prejudice was a final judgment, and having

successfully obtained dismissal of Skoglund’s claims against it, the Association

was plainly the prevailing party.

Skoglund next argues that the Association “is not entitled to recover

attorney fees it has not paid.” (Bold face omitted.) But Skoglund does not point

to any evidence in the record to support his assertion that the Association “is

under an insurance policy, so [it] has not paid a dime for attorney fees and

costs.” See RAP 10.3(a)(5) (“Reference to the record must be included for each

factual statement.”). Nor does he cite any authority for the proposition that a

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party is not entitled to an award of reasonable attorney fees merely because it

has not paid them. Cf. MOSM, LLC v. Deegan, ___ Wn. App. 2d ___, 544 P.3d

591, 596 (2024) (the fact that a party’s attorneys are pro bono does not alone

prohibit that party from receiving attorney fees). Accordingly, we are

unpersuaded.

Finally, Skoglund contends that the Association was not entitled to

attorney fees because, in filing this lawsuit, Skoglund “was not seeking

enforcement of the [CCRs].” In support, Skoglund relies on an opinion of this

court that is not only unpublished but also unpersuasive because there, the

attorney fees clause applied only to actions “ ‘to enforce’ ” the CCRs,3 whereas

here, the attorney fees clause more broadly applies to actions “involving

enforcement.” Skoglund also relies on Meresse v. Stelma, but that case is

readily distinguishable because the underlying litigation involved an association’s

amendment of the CCRs, not its enforcement. 100 Wn. App. 857, 867-68, 999

P.2d 1267 (2000). Here, by contrast, even Skoglund concedes that this lawsuit

is about the Association’s “attempt[ ] to enforce” the CCRs against him—indeed,

that is the basis for Skoglund’s own request for an award of fees on appeal,

which we address below. The trial court did not err by concluding that the

underlying lawsuit was “litigation involving enforcement of the[ ] covenants” as

contemplated by the CCRs’ attorney fees provision. See W EBSTER’S THIRD NEW

3 Brain v. Canterwood Homeowners Assoc., No. 56733-4-II, slip op. at 14

(Wash. Ct. App. July 18, 2023) (unpublished; cited under GR 14.1(c) as necessary to a reasoned decision), https://www.courts.wa.gov/opinions/pdf/ D2%2056733-4-II%20Unpublished%20Opinion.pdf.

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INTERNATIONAL DICTIONARY 1191 (1993) (definition of “involve” includes “to relate

closely” and “to concern directly”); cf. Wm. Dickson Co. v. Pierce County, 128

Wn. App. 488, 494, 116 P.3d 409 (2005) (court may turn to standard dictionaries

to interpret undefined contractual terms).

Fees on Appeal

Both parties request an award of attorney fees on appeal pursuant to the

CCRs’ attorney fees provision, which applies to this litigation for reasons already

discussed. Because Skoglund is not the prevailing party on appeal, we deny his

request. And because the Association is the prevailing party on appeal, we grant

its request subject to its compliance with RAP 18.1(d).4

We affirm.

WE CONCUR:

4 Because we grant the Association’s request for attorney fees under the

CCRs, we do not reach the Association’s argument that attorney fees are also warranted as a sanction under RAP 18.9.