Madera W. Condo. Ass'n v. Marx/Okubo
| Decision Date | 01 July 2013 |
| Docket Number | C/w No. 68522-8-I,No. 68127-3-I,68127-3-I |
| Court | Washington Court of Appeals |
| Parties | MADERA WEST CONDOMINIUM ASSOCIATION, a Washington non-profit corporation; THOMAS FASSLER; JOHN BERRY; TAMARA VERA; MICHELLE DONALDSON; JACK RADFORD; JAY INGWALDSON; DOROTHY ROCKEY; ALLAN FULLER; SCOTT PERRY; RYAN FIDLER; DANIELLE TOWNSEND; DIANA CRETTOL; HANNAH ALMARAZ; KEITH BRETT; LEONOR CASTELLAR; GARY EVANS; LATRELLE GIBSON; LINDA GRESETTE; RICHARD HARRISON; CINDY KALLENBERG; BRENNA LARSEN-THIEL; CANDICE McKINNEY; JAYNE MILLER; MICHAEL OCTAVE; HENRI PARREN; PAUL PATTELLE; TON I POSEY; KELLY ROBINSON; MICHAEL SMITH; JEROME SZYMANSKI; STEVEN TOLLEY; ERIN ZAMORA; ROCIO TRUJILLO; GWEN BERVEN; MARY BIZZELL; PAUL BOVA; ALYSON BROWN; ADAM CARTER; ALTHEA CHANG; JENNIFER COPE; JEFF DANNENBERG; LEE ELLIOTT; GARY GESELL; JONATHAN JONES; COURTNEY LINDSAY; MICHAEL OKUDA; GABRIEL ORTIZ; MARCIA PETERSON; ERIK SOCTT; DAN SKINNER; DIANNA STACY; JIMMIE STOKES; BEVERLY STOKES; ADAM STOKES; LINDA UPSHAW; ROSIE WHITE; ERIK WINKLER; and KARL YAUCH, Washington residents, Appellants/Respondents, v. MARX/OKUBO, a Washington corporation, Respondent/Appellant, MADERA WEST, LLC, a Washington corporation; JESSE NELSON, a Washington resident; and COLDWELL BANKER BAIN ASSOCIATES, a Washington corporation, Defendants. |
UNPUBLISHED
Cox, J. — Madera West Condominium Association and multiple individual condominium unit owners (collectively "COA") appeal the summary dismissal of their action for negligence against the architectural firm of Marx/Okubo & Associates, Ltd. ("Marx/Okubo"). Marx/Okubo appeals the trial court's denial of its motion for attorney fees and sanctions under CR 11 and CR 26(g). We consolidate these linked appeals for decision.
The COA fails to show that Marx/Okubo owed it any statutory or common law duty for a professional negligence claim. Thus, there are no genuine issues of material fact for trial on this claim. Further, the negligent misrepresentation claim has been abandoned on appeal.
Marx/Okubo fails to show that it is either entitled to an award of attorney fees or that the trial court abused its discretion in denying sanctions. We affirm.
In 1996, Marx/Okubo inspected and evaluated the condition of the Forest Village Apartments' ("Apartments") siding for the Apartments' then owner. The siding was evaluated based on criteria established by a class action suit againstthe siding's manufacturer. Marx/Okubo concluded that approximately 35 percent of the siding was damaged.
In 2005, A.F. Evans Development, Inc. ("A.F. Evans"), the prospective purchaser of the Apartments, hired Marx/Okubo to inspect the property. The purposes of this inspection included determining the condition of the property in preparation for A.F. Evans to convert the property to condominiums.
Marx/Okubo inspected the Apartments and produced a "Property Condition Assessment" in April and a "Reserve Study" in May. The property assessment summarized Marx/Okubo's "review of the physical conditions; architectural, mechanical, and electrical components . . . and the quality of construction." The reserve study provided "a forward projection of major costs of repairs and replacements that the Forest Village Homeowners Association should anticipate in planning and budgeting for a reserve fund."
Marx/Okubo gave the following summary of the Apartments' siding:
In May 2005, A.F. Evans purchased the property. Thereafter, the property was converted to condominiums. Madera West, LLC ("MW, LLC"), was the developer and declarant of the Madera West Condominiums ("Madera West").
The COA commenced this action against MW, LLC, and others. The COA later joined Marx/Okubo as a defendant. In its Third Amended Complaint, theCOA asserted claims for negligent misrepresentation and professional negligence against Marx/Okubo.1
In November 2011, the COA and Marx/Okubo made cross motions for summary judgment. Marx/Okubo argued that the COA failed to establish a negligent misrepresentation claim and that it did not owe the COA a duty for a professional negligence claim. In the COA's motion for partial summary judgment, the COA sought determinations that (1) the COA had standing to pursue its negligence claims on its own behalf and on behalf of individual unit owners, and (2) Marx/Okubo breached a duty of care it owed to the COA. Additionally, the COA moved to strike portions of Randy Hart's declaration that Marx/Okubo submitted in opposition to the COA's motion for partial summary judgment. Hart is an architect and a principal at an engineering firm who reviewed the records produced in discovery for this case.
The trial court granted Marx/Okubo's motion for summary judgment and dismissed, with prejudice, all of the COA's claims against Marx/Okubo. It also denied the COA's motion for partial summary judgment and dismissed its claims based on lack of standing. For purposes of this latter motion only, the court also denied the COA's motion to strike portions of Hart's declaration.
In February 2012, Marx/Okubo moved for an award of attorney fees and sanctions. The trial court denied both requests.
The COA and Marx/Okubo both appeal.
PRELITIGATION NOTICE
The COA argued in its briefing on appeal that it was not required to give Marx/Okubo prelitigation notice. Marx/Okubo contends that this issue is moot. We agree that this issue is moot, and the COA properly conceded this point at oral argument on appeal.
Generally, this court will not consider a moot issue unless it involves '"matters of continuing and substantial public interest.'"2 '"A case is technically moot if the court cannot provide the basic relief originally sought . . . or can no longer provide effective relief.'"3 Mootness is a question of law that this court reviews de novo.4
There are exceptions that permit a court to reach a moot issue, but these exceptions do not apply to this case.
Here, the trial court granted the COA's motion for leave to rejoin Marx/Okubo as a party after it complied with the prelitigation notice requirement and statutory procedures. Because this court cannot provide any relief that the trial court has not already provided, this issue is moot. We need not address this issue further.
STANDING
The COA next argues that the trial court erred when it summarily dismissed the Condominium Owners Association's ("Association") claims against Marx/Okubo on the basis that the Association lacked standing. We agree in part.
Because we refer to the Association and the individual unit owners collectively as the "COA," we refer to the Association separately when discussing its standing.
A motion for summary judgment may be granted when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law.5 This court reviews a summary judgment order de novo, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party.6
There are two issues. The first is whether the Association lacked standing to bring the claims on its own behalf. The second is whether the Association lacked standing to bring the claims on behalf of condominium unit owners. We address each issue separately.
The Association's Standing on Behalf of Itself
The COA argues that the Association has standing to bring claims on its own behalf. It contends that the Association has a property interest in Madera West's common elements and the reserve account, which satisfies the standing requirements. We disagree.
Under RCW 64.34.304(1)(d) of the Washington Condominium Act, a unit owners' association may "[i]nstitute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the condominium."7 But in order for a unit owners' association to bring a claim on its own behalf, it must prove that it has standing independent from the unit owners.8
"The doctrine of standing prohibits a litigant from raising another's legal rights."9 A party has standing if it demonstrates that it has '"a present, substantial interest'" and that it will accrue a benefit by the relief granted.10
In Satomi Owners Association v. Satomi, LLC, the supreme court addressed a condominium owners' association's standing to bring claims on its own behalf against a developer and subcontractors.11 The court looked to whether the association alleged damage to any property in which it had a "protectable interest" to determine whether it had standing independent from the unit owners.12
The association asserted five claims on its own behalf under RCW 64.34.304(1)(d).13 It further alleged that the damages included "the cost of repairing the project . . . and resulting monetary and material harm."14 The "project" involved individual units, common elements, and limited common elements.15
The court concluded that the association lacked standing to bring the five claims on its own behalf because it did not have a "protectable interest" in the property that was allegedly damaged.16 Specifically, it did not own the units or the common elements that were allegedly damaged.17 "Common elements" are "all portions of a condominium other than the units."18
Here, the COA brought two claims against Marx/Okubo: negligent misrepresentation and professional negligence. In its third amended complaint, it alleged that the damage it suffered included "the cost of repairing the damage to the Project caused by defective workmanship and materials and related costs, the cost of correcting defective conditions and related costs, consequential damages, the loss of use, stigma damages, investigation costs and litigation expenses."
To demonstrate that the Association has independent standing, the COA must show that the Association has a protectable interest in the property that was allegedly...
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