Mountain High Assn Of Apt Owners v. Samuel D. Turner ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MOUNTAIN HIGH ASSOCIATION OF
APARTMENT OWNERS, a Washington
nonprofit corporation,
No. 74529-8-
Respondent,
v.
DIVISION ONE
SAMUEL D. TURNER and JANE DOE
TURNER, husband and wife or state
registered domesticated partners; and
LILLIAN L. RAMBUS and JOHN DOE UNPUBLISHED OPINION
RAMBUS, wife and husband or state
registered domesticated partners,
Appellant. FILED: January 17. 2017
SPEARMAN, J. — Samuel Turner and Lillian Rambus appeal the grant of
summary judgment in favor ofMountain High Association of Apartment Owners for
the collection of delinquent condominium assessments. They contend that there are
genuine issues of material fact and that the trial court abused its discretion in refusing
to consider their untimely response to the summary judgment motion. Finding no
error, we affirm.
FACTS
Mountain High Association ofApartment Owners (Association), a Washington
corporation, manages the Mountain High condominium in Seattle. Appellants Samuel
Turner and Lillian Rambus (collectively Rambus) own unit 411 in the condominium.
No. 74529-8-1/2
Starting in about 2012, Rambus became delinquent in paying certain
condominium assessments. She made irregular payments for several years, but
never paid the alleged outstanding amounts in full.
On June 22, 2015, the Association filed this action in King County Superior
Court against Rambus, seeking a judgmentfor delinquent assessments, collection
costs, and attorney fees. Rambus filed an answer disputing some of the alleged
delinquent amounts.
On October 8, 2015, the Association moved for summary judgment. The
Association noted the motion for a hearing on November 6, 2015.
At some point, Rambus apparently informed the trial court that she had a
conflict for the week of the scheduled hearing date and asked for a continuance. The
trial court continued the hearing to December 11, but ruled that the deadline for
Rambus's response would remain as originally scheduled. See CR 56(c). Rambus
did not file a response to the summary judgment motion until December 8, three days
before the hearing.
When the parties appeared for the hearing on December 11, Rambus
acknowledged that she understood the trial court had granted a continuance for the
hearing date but did not extend the date for filing the response. She explained that
she was self-represented and had underestimated the amount ofwork involved.
Because Rambus had not provided the judge with a copy or served a copy on the
Association, the trial court sustained the Association's objection and declined to
consider the response. The court permitted Rambus to present an extensive
No. 74529-8-1/3
argument, but commented that much of her argument was unsupported by any
evidence in the record.
At the conclusion of the hearing, the trial court granted summary judgment and
entered a judgment in favor of the Association for about $9,000, including attorney
fees. Rambus appeals.
ANALYSIS
On appeal, Rambus contends that the trial court erred in entering summary
judgment. She argues thatthere are disputed factual issues about the amount of the
delinquency, the payments she has made, and the amount ofthe attorney fee award.
When reviewing a grant of summary judgment, an appellate court undertakes
the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d
1030 (1982). We consider the evidence and all reasonable inferences in the light
most favorable to the nonmoving party. Schaafv. Hiqhfield, 127Wn.2d 17, 21, 896
P.2d 665 (1995). Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter oflaw." CR 56(c); White v. State, 131 Wash. 2d 1,
9, 929 P.2d 396 (1997).
The moving party can satisfy its initial burden under CR 56 by demonstrating
the absence of evidence supporting the nonmoving party's case. Young v. Key
Pharms.. Inc., 112 Wash. 2d 216, 225 n.1, 770 P.2d 182 (1989). The burden then shifts
to the nonmoving party to set forth specific facts demonstrating a genuine issue for
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trial. Kendall v. Douglas, Grand & Okanogan Counties Public Hosp. Dist. No. 6, 118
Wash. 2d 1, 8-9, 820 P.2d 497 (1991).
In support of its motion for summary judgment, the Association identified the
legal basis for the assessments and submitted a copy of the Association ledger
documenting the amount of delinquent assessments and Rambus's payments. The
Association also provided a detailed billing record to support its request for attorney
fees. The Association therefore satisfied its initial burden under CR 56 of
demonstrating that itwas entitled to judgment as a matter of law.
Once the moving party has met its initial burden under CR 56,
the non-moving party may not rely on the allegations in the
pleadings but must set forth specific facts by affidavit or otherwise
that show a genuine issue exists. Additionally, any such affidavit
must be based on personal knowledge admissible at trial and not
merely on conclusory allegations, speculative statements or
argumentative assertions.
Las v. Yellow Front Stores. Inc., 66 Wash. App. 196, 198, 831 P.2d 744 (1992)
(citations omitted).
Our review of an order granting summary judgment is limited to those
materials properly before the trial court. See RAP 9.12. Here, Rambus failed to
submit any materials opposing summary judgment in accordance with the deadline
that the trial court set when it continued the hearing date, and the court later rejected
her untimely response. Nor has Rambus identified any evidence in the record before
the trial court that demonstrates a material factual issue. The trial court properly
granted the Association's motion for summaryjudgment.
No. 74529-8-1/5
Much of Rambus's briefing on appeal consists of conclusory allegations of
fact, unsupported by any meaningful reference to the appellate record. See RAP
10.3(a)(5) (party must include reference to the record for each factual statement in
brief). Although we are mindful ofthe difficulties Rambus faced when proceeding pro
se, we will hold self-represented litigants to the same standard as an attorney. In re
Marriage of Olson, 69 Wash. App. 621, 626, 850 P.2d 527 (1993).
Rambus also contends that the trial court erred in refusing to consider her
response, which she filed three days before the summary judgment hearing. Neither
the trial judge nor theAssociation had received a copy of the response when the
parties appeared for the summary judgment hearing. Relying on CR 56(f), Rambus
argues that the trial court should have extended the deadline for filing her response
when it continued the hearing from November 6 to December 11.
CR 56(f) provides that when a nonmoving party
cannot present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such
other order as is just.
The party seeking a continuance under CR 56(f) must offer a good reason for the
delay and provide an affidavit stating what evidence the party seeks and how it will
raise an issue of material fact to preclude summary judgment. Durand v. HIMC Corp.,
151 Wash. App. 818, 828, 214 P.3d 189 (2009); CR 56(f). We review the trial court's
denial of a CR 56(f) continuance for an abuse of discretion. Durand, 151 Wn. App. at
No. 74529-8-1/6
828 (citing Qwest Corp. v. City of Bellevue,161 Wn.2d 353, 369, 166 P.3d 667
(2007)).
Contrary to her allegations, nothing in the record indicates that Rambus
actually requested a continuance under CR 56(f). She has not provided this court
with her affidavit supporting a CR 56(f) motion for a continuance or any record of the
trial court's ruling, including her request for the continuance, the parties' arguments,
and the trial court's decision. At the summary judgment hearing, Rambus clearly
acknowledged her understanding that the deadline for her response remained
unchanged when the trial court continued the hearing date. She raised no objection
to the provisions of the trial court's continuance and did not move for a continuance
during the course of the hearing. On the record before us, Rambus has failed to
demonstrate any trial court error or abuse of discretion.1
The Association requests an award of attorney fees on appeal. See RAP
18.1(a). Under RCW 64.34.364(14), an association may recover reasonable costs
and attorney fees "incurred in connection with the collection of delinquent
1The parties have not addressed the potential relevance of Keck v. Collins, 184Wn.2d 358, 362,
357 P.3d 1080 (2015), in which our Supreme Courtheld that the trial court must apply the factors in
Burnet v. Spokane Ambulance, 131 Wash. 2d 484, 933 P.2d 1036 (1997), when ruling on a motion to
strike untimely evidence submitted in response to a motion for summary judgment. As we noted, the
record indicates that Rambus did not seek a continuance under CR 56(f) or request a continuance at
the summary judgment hearing. Moreover, Rambus's untimely declaration consisted solely of
conclusory allegations, including allegations disputing some of the assessments and the
reasonableness of attorney fees. Rambus also requested a judgment for defamation. When viewed in
the light most favorable to Rambus, the declaration and the attached documents do not raise a
genuine factual dispute about the validity or amountof the delinquent assessments and fees. See,
Grimwood v. Univ. of Puqet Sound. Inc., 110 Wash. 2d 355, 359-60, 753 P.2d 517 (1988) (unsupported
conclusory assertions are insufficient to defeat summary judgment). Consequently, even if the trial
court should have considered Rambus's untimely response, summary judgment in favor of the
Association was proper.
No. 74529-8-1/7
assessments" and if the association "prevails on appeal." Section 19.5 of the
Mountain High Covenants, Conditions, Restrictions, and Reservations also provides
for the award of attorney fees following a successful action to collect delinquent
assessments. Accordingly, the Association is awarded reasonable attorney fees and
costs on appeal, subject to compliance with RAP 18.1(d).
Affirmed.
WE CONCUR:
fs.-