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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
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IN AND FOR WHATCOM COUNTY
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SCOTT HILLIUS, et al.,
No. 20-2-00701-37
Plaintiffs,
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v.
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18 PARADISE, LLP,
Defendant.
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MOTION FOR PARTIAL SUMMARY
JUDGMENT RE: MAINTENANCE FEES
Judge David E. Freeman
September 30, 2022
Motions Calendar
I. INTRODUCTION
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This action primarily concerns the Homestead PRD Common Open Space maintenance fee under
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the Declaration of covenants (the “Declaration”). The Court has entered an order setting forth the
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definition of Common Open Space for purposes of the Declaration, and it should now take the next
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logical step and define the term “maintenance.” With both terms defined, the Court should further order
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that the Declaration limits the declarant’s use of the maintenance fee to the performance of maintenance
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as defined by the Declaration.
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II. EVIDENCE RELIED UPON
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1. Declaration of Matthew Davis and attachments thereto;
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2. Files and records herein.
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III. FACTUAL BACKGROUND
A. The Court Has Ruled on the Declarations’ Definition of Common Open Space.
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This Court has ruled that the term “Common Open Space” as defined in paragraph 1.3.8 of the
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Declaration means exactly what the Declaration says it means. Pursuant to the Court’s order, “Common
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Open Space” means:
Andersson Cross-Border Law Corporation
MOTION FOR PARTIAL SUMMARY JUDGMENT
RE: MAINTENANCE – 1
1155 N. State St. Suite 619
Bellingham, WA 98225
(360) 768-1265
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Platted areas within the Homestead PRD that are: (1) identified on the face of a plat as
“Common Open Space” or “Open Space;” (2) delineated on a plat but not identified as a lot;
and (3) easements on the face of a plat for ingress and egress, pedestrian use, or pathways.
Except: (1) areas dedicated to the City of Lynden for roadways and utilities; (2) areas that are
also identified as utility easements, (3) unplatted areas, and (4) areas within the golf course,
clubhouse, R.V. storage and maintenance areas.
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Order on Common Open Space (4/6/2022) motion at 2.
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B. The Term Maintenance Is Clearly Defined by the Declaration.
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The Declaration also contains a paragraph entitled “Maintenance” that defines the meaning and
scope of maintenance.
Maintenance. So long as the Declarant or such heirs, successors, or assigns continue to own
and hold title to the Common Open Space, payments for costs and expenses shall be funded by
joint maintenance fees provided by Parcel Owners other than the Declarant. The Declarant shall
manage and maintain the Common Open Space. All costs and expenses of maintenance of and
improvements to the Common Open Space shall be paid by the Declarant, its heirs, successors
and assigns (other than the Parcel Owners or the Association). Maintenance also includes
maintenance of entry signs and landscape, mail box surrounds, street light electrical power bills,
and maintenance of lights not maintained by the City of Lynden.
Exhibit 1 at ¶ 3.3. No other part of the Declaration adds to or departs from this definition. There is no
textual inconsistency or ambiguity.
Maintenance first and foremost includes maintenance of the Common Open Space itself: “The
Declarant shall manage and maintain the Common Open Space.” Exhibit 1 at ¶3.3. Maintenance
therefore includes all maintenance and improvements of the Common Open Space. Second, paragraph
3.3 states that “Maintenance also includes” a discrete number of other subjects. Those are “maintenance
of entry signs and landscape,” maintenance of “mail box surrounds,” “street light electrical power
bills,” and “maintenance of lights not maintained by the City of Lynden.” Id. at ¶ 3.3. No other part of
the Declaration states or suggests that anything else is included in maintenance.
18 Paradise agrees that its duty to maintain the Common Open Space is set forth in paragraph 3.3
of the Declaration
Q. Paragraph 3.3, the sentence is five lines down in the middle of the line, the Declarant shall
manage and maintain the common open space. Do you see that?
A. Yes.
Q. Does 18 Paradise agree that it has a duty under the declaration to manage and maintain the
common open space?
MR. ROSS: Objection. Calls for a legal conclusion, document speaks for itself. You can
answer, Raymond.
A. Yes.
18 Paradise Deposition at 11-12.
Andersson Cross-Border Law Corporation
MOTION FOR PARTIAL SUMMARY JUDGMENT
RE: MAINTENANCE – 2
1155 N. State St. Suite 619
Bellingham, WA 98225
(360) 768-1265
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18 Paradise further agrees that the term “maintenance” means maintenance of the Common Open
Space under paragraph 3.3.
Q. It says: So long as the Declarant or its heirs, successors, or assigns continues to own and
hold title to the common open space, payments for cost and expenses shall be provided
under maintenance fee. It say: The Declarant shall manage and maintain the common open
space. It says: All costs and expenses of maintenance and of improvements to the common
open space shall be paid by the Declarant.
Now, does that suggest to 18 Paradise that maintenance means maintenance of the common
open space?
A. Yes.
Id. at 61.
C. The Maintenance Fee Is Limited to Maintenance.
Paragraph 3.3 of the Declaration also establishes the maintenance fee, and it states that the costs
and expenses of maintenance of and improvements to the Common Open Space “shall be funded by
joint maintenance fees provided by Parcel Owners.” Exhibit 1 at ¶ 3.3. The recorded document
assigning the declarant rights to 18 Paradise states that the purpose of the maintenance fee was to
“recover the costs for services and maintenance of the Common Open Space as from the owner of any
lot or parcel as provided for in the Master Declaration.” Exhibit 2.
In its recent CR 30(b)(6) deposition, 18 Paradise agreed that the maintenance fee was intended to
be used exclusively for maintenance.
Q. Do you understand -- or does 18 Paradise understand that the intention of the declaration
was that the maintenance fee would be used for the purpose of paying the expenses of
maintaining the common open space?
A. Yes.
18 Paradise Deposition at 13-14.
Q. And that the purpose of the maintenance fee was for 18 Paradise to recover its costs of
maintenance?
A. Yes.
Id. at 25.
Q. Okay. If the purpose of the maintenance fee is to recover the cost of maintenance, would 18
Paradise agree that the maintenance fee should not exceed the cost of maintenance?
MR. ROSS: Object to form.
A. Yeah, the maintenance fee should cover the cost of the maintenance, right.
Q. And so the maintenance fee should not pay for maintenance of the golf course, should it?
A. Agree.
Id. at 54-55.
Q. Okay. But 18 Paradise would agree that the maintenance fee should be equal to the cost of
maintenance; right?
A. Yes.
Andersson Cross-Border Law Corporation
MOTION FOR PARTIAL SUMMARY JUDGMENT
RE: MAINTENANCE – 3
1155 N. State St. Suite 619
Bellingham, WA 98225
(360) 768-1265
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Id. at 55.
Q. Okay. Would 18 Paradise agree that the maintenance fee should be limited to the actual cost
of maintenance?
MR. ROSS: Objection. Asked and answered.
THE WITNESS: Do I have to answer that?
Q. If you can. I tried to ask -- I did sort of ask a related question, I just asked it more succinctly.
A. Yes.
Id. at 56.
Q. Mr. Chou, would 18 Paradise consider it appropriate to charge maintenance fees that were
many times the actual cost of performing the maintenance?
A. No.
Id. at 98. 18 Paradise repeatedly confirmed this basic fact, and it cannot retract those statements now.
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IV. ISSUE PRESENTED
Should the Court grant an order of partial summary judgment that:
(1) “Maintenance” for purposes of the Declaration means maintenance of the Common Open
Space, maintenance of entry signs and landscape, mail box surrounds, street light electrical
power bills, and maintenance of lights not maintained by the City of Lynden; and
(2) Pursuant to the Declaration, the declaration may use the maintenance fee only for purposes of
maintenance.
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V. ARGUMENT
When interpreting restrictive covenants, the job of the Court is to determine the drafter’s objective
intent as expressed in the words of the covenants. Hollis v. Garwall, Inc., 137 Wash.2d 683, 696, 974
P.2d 836 (1999). Once the drafter’s intent is determined, interpretation of a restrictive covenant
presents a question of law. Wilkinson v. Chiwawa Cmtys. Ass'n, Non-Profit Corp., 180 Wash.2d 241,
327 P.3d 614 (2014).
Although the drafter’s intent is a question of fact, it can be resolved on summary judgment when
the facts are not in dispute. Wilkinson; Ross v. Bennett, 148 Wash.App. 40, 49, 203 P.3d 383 (2009);
Owen v. Burlington N. Santa Fe R.R., 153 Wash.2d 780, 788, 108 P.3d 1220 (2005)). In determining
intent, courts start with the terms of the covenants and give them their “ordinary and common use” and
will not construe a term in such a way “so as to defeat the plain and obvious meaning.” Mains Farm,
121 Wash.2d at 816; Riss, 131 Wash.2d at 623. With restrictive covenants, courts “place ‘special
emphasis on arriving at an interpretation that protects the homeowners' collective interests.’ ” Id. at
Andersson Cross-Border Law Corporation
MOTION FOR PARTIAL SUMMARY JUDGMENT
RE: MAINTENANCE – 4
1155 N. State St. Suite 619
Bellingham, WA 98225
(360) 768-1265
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623–24 (quoting Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61 Wash.App. 177, 181, 810
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P.2d 27 (1991)).
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A. The Court Should Rule That “Maintenance” Is Defined in Paragraph 3.3 of the Declaration.
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Applying these rules, the Court should rule that the scope of “maintenance” is defined by paragraph
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3.3 of the Declaration. Paragraph 3.3 states that the declarant shall maintain the Common Open Space.
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It then states that maintenance “also includes maintenance of entry signs and landscape, mail box
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surrounds, street light electrical power bills, and maintenance of lights not maintained by the City of
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Lynden.” Declaration at ¶ 3.3.
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In the interest of full disclosure, plaintiffs acknowledge that under rules of statutory construction,
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the use of the word “including” followed by a list of subjects is generally considered to be illustrative
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and not exhaustive. Watson v. City of Seattle, 189 Wash.2d 149, 401 P.3d 1 (2017) (“We have
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recognized that when the legislature uses the word ‘including’ before a list of examples, it plainly
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establishes them to be illustrative examples rather than an exhaustive list.”). Here, however, the
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Declaration states that maintenance “includes” a specific list of items rather than using the inclusive
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term “including.” Nothing in the Declaration suggests that the list in paragraph 3.3 was meant to be
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illustrative, and nothing in the Declaration provides guidance to suggest that any other subject is
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included.
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Moreover, the matters excluded from the definition of Common Open Space could not be included
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without internal inconsistency. None of the additional items listed in paragraph 3.3 would be located
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on “(1) areas dedicated to the City of Lynden for roadways and utilities; (2) areas that are also identified
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as utility easements, (3) unplatted areas, and (4) areas within the golf course, clubhouse, R.V. storage
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and maintenance areas.”
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No evidence remotely suggests any intent by the drafter to include anything beyond the subjects
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listed in paragraph 3.3 to be within the definition of maintenance. On its face and read as a whole,
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paragraph 3.3 completely defines the scope of maintenance, and the Court should adopt it as the correct
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definition of the term. The Court should rule that the term “maintenance” as used in the Declaration
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means: (1) maintenance and improvement of the Common Open Space; (2) maintenance of entry signs
Andersson Cross-Border Law Corporation
MOTION FOR PARTIAL SUMMARY JUDGMENT
RE: MAINTENANCE – 5
1155 N. State St. Suite 619
Bellingham, WA 98225
(360) 768-1265
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and landscape, and mail box surrounds; (3) street light electrical power bills; and (4) maintenance of
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lights not maintained by the City of Lynden.
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B. The Court Should Rule That the Maintenance Fee Is Limited to Maintenance.
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Maintenance and the maintenance fee are set forth in the same paragraph of the Declaration and
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have the same scope. Paragraph 3.3 of the Declaration states that maintenance “shall be funded by joint
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maintenance fees provided by Parcel Owners.” The Declaration sets forth no other purpose for the
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maintenance fee, and it does not create any other homeowner interest for which the maintenance fee
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could be used.
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As set forth above, 18 Paradise was repeatedly asked about the purpose of the maintenance fee, and
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it repeatedly testified that the maintenance fee was limited to maintenance, could not be used for golf
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course expenses, and should be equal to the cost of maintenance. There being no dispute on this issue,
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the Court should rule as a matter of law under CR 56(d) that the Declaration limited the declarant’s use
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of the maintenance fee to maintenance as defined by the Declaration.
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VI. CONCLUSION
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Throughout this action, the parties largely have spoken past each other. The recent deposition of
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18 Paradise finally established some common ground, and the Court should enter an order establishing
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the key undisputed facts so that the parties can prepare for trial.
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DATED this 2nd day of September, 2022.
Andersson Cross-Border Law Corporation
By
K. David Andersson, WSBA No. 24730
Attorneys for plaintiffs
MATTHEW F. DAVIS, PLLC
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By
Matthew F. Davis, WSBA No. 20939
Attorneys for plaintiffs
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Andersson Cross-Border Law Corporation
MOTION FOR PARTIAL SUMMARY JUDGMENT
RE: MAINTENANCE – 6
1155 N. State St. Suite 619
Bellingham, WA 98225
(360) 768-1265