UNPUBLISHED OPINION.
APPELWICK, J.
Lana Berry appeals the trial court's summary judgment order and the decree allowing foreclosure on her condominium for failure to pay the special assessment for repairs levied against her unit. The special assessment for repairs was properly levied. We affirm.
Facts
Eastport Shores is a residential condominium with 32 individually owned units in four separate buildings. In 1980, the Declaration and Covenants, Conditions, Restrictions, and Reservations ("Declaration") for Eastport Shores Condominiums was filed in King County, Washington. Lana Berry purchased a condominium at Eastport Shores in April 2005. All units are subject to the Declaration.
Article 12 of the Declaration vests the Eastport Shores Condominium Association board ("Board") with the authority to estimate common expenses and levy assessments where the operating budget is inadequate. According to the Declaration, common areas and limited common areas are defined as structural components of the building, but also include the roof, windows, walls, siding, decks, and doors.
In August 2006, water damage was discovered in a unit. At the instruction of the Board, an engineering firm conducted an investigation, which determined that extensive damage existed in the structural components of the building. Pending the engineering report, owners were notified, in both September and October, of the initial finding of water damage in the unit.
The Board hired an engineering consultant to recommend a course of action and to assess the other buildings. On January 31, 2007, prior to receiving the engineering report assessing possible water damage at the entire condominium complex, the Board sent a letter to owners describing the status of the damage, emergency repairs, and the initial recommended course of action. On February 1, 2007, the Board received the more comprehensive report. It recommended repairing the building envelope and replacing the widows, doors, siding, and decks. Beginning in February and continuing until May, the Board sought bids from four contractors to perform the work.
On May 8, 2007, the Board held a meeting to present the status of the emergency repairs and discuss the potential cost of the complete restoration of the condominium complex. In May 2007, the Board sent all owners written notice of a special meeting, to be held on June 13, 2007, to discuss the special assessment and determine, as provided in the Declaration, if more than 75 percent of the owners sought to disband the condominium, rather than make the repairs. The letter indicated the repairs totaled approximately $1,605,000.00. Each owner would be assessed between $46,573.89 and $53,738.61, depending on the percentage of interest owned in the common areas. At the June 13, 2007 meeting, only Lana Berry voted against the repairs. The Board passed a resolution on June 27, 2007, enacting the special fee assessment to cover the repairs.
The Declaration states that the Board has authority to assert a lien for unpaid monthly or special assessments, plus interest at the rate of twelve percent per annum, and attorney fees, as a lien upon the apartment. Further, "[t]he said lien for payment of such assessments and charges shall have priority over all other liens and encumbrances, recorded or unrecorded, except that such priority shall be limited as provided in Article 18."
On March 2, 2007, Berry filed for chapter 13 bankruptcy. At the time of her bankruptcy filing, Berry owed $2,796.95 to Eastport Shores in back monthly assessment payments. On August 1, 2007, in United States Bankruptcy Court for the Western District of Washington, Eastport Shores obtained relief from the automatic stay, for the purpose of foreclosing on its claim of lien upon real property against Berry. On August 24, 2007, Eastport Shores filed a complaint in King County Superior Court asserting a lien against Berry's property for unpaid assessments and seeking an in rem judgment against Berry that included late fees and attorney fees. Eastport Shores also requested that the lien be declared the valid first lien and sought that the lien be foreclosed at a foreclosure sale.
In her answer to the complaint, Berry asserted a counterclaim, which alleged that the lien was invalid, because the Board lacked the authority under the Declaration to approve the special assessment. On January 3, 2008, the trial court issued an order permitting Karen Morgan, an Eastport Shores condominium owner and former Board member, to join Berry's claims.
Berry also asserted that Eastport Shores failed to conduct a meaningful investigation of possible insurance coverage. Berry sought to dismiss Eastport Shores' claims with prejudice, and sought an order "dissolving plaintiff, and quieting title to the subject property in the individual owners." She also sought attorney fees and an undisclosed amount in damages. Eastport Shores replied seeking a dismissal of the counterclaim for failure to state a claim upon which relief can be granted, failure to join the other condominium owners as necessary parties, standing, failure to exhaust administrative remedies, failure to mitigate damages, laches, and equitable and judicial estoppel. Berry filed a first amended complaint, amending the relief to seek dismissal of Eastport Shores' claims, an order declaring the special assessments invalid, damages, attorney fees and costs, and other equitable relief. The trial court denied Eastport Shores' motion to dismiss the counterclaim because Berry had withdrawn the claim to dissolve or disband Eastport Shores and quiet title.
On January 18, 2008, Berry and Morgan filed a motion for summary judgment arguing that the special assessment asserted by Eastport Shores exceeded the authority of the Board and was therefore invalid. Berry and Morgan argued that the special assessment required an affirmative vote of 75 percent of the owners, because the work performed on the condominiums included capital improvements not required to remedy the water damage, and that the Board failed to make a timely determination of the extent of the damage, and failed to call a special meeting as required by the Declaration. Eastport Shores also filed a motion for summary judgment. The trial court dismissed Berry's and Morgan's counterclaims and granted Eastport Shores' motion for summary judgment. In the same order, the trial court issued a foreclosure decree, awarding Eastport Shores $14,259 in principal judgment, plus interest and fees.
On March 11, 2008, the trial court awarded Eastport Shores $39,256.40. The trial court granted a supplemental award of costs and attorney fees.
Berry and Morgan assign error to the trial court's order denying their motion for summary judgment, granting summary judgment to Eastport Shores, and dismissal of their counterclaims.
Discussion
"On review of summary judgment, we engage in the same inquiry as the trial court. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Quadrant Corp. v. Am. States Ins. Co., 154 Wn.2d 165, 171, 110 P.3d 733 (2005) (citation omitted) (citing Int'l Bhd. of Elec. Workers, Local Union No. 46 v. Trig Elec. Constr. Co., 142 Wn.2d 431, 434-35, 13 P.3d 622 (2000)).
I. Dismissal of Counterclaim
Berry claims the trial court erred in dismissing her counterclaim, because she lacked standing, failed to state a claim on which relief can be granted, and was judicially estopped.
The standing doctrine requires that a plaintiff must have a personal stake in the outcome of the case in order to bring suit. Gustafson v. Gustafson, 47 Wn. App. 272, 276, 734 P.2d 949 (1987). "[T]he doctrine of standing prohibits a litigant from asserting another's legal right." Miller v. U.S. Bank of Wash., 72 Wn. App. 416, 424, 865 P.2d 536 (1994) (as corrected). "Standing is a question of law that we review de novo." Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1454 (9th Cir. 1995); In re Guardianship of Karan, 110 Wn. App. 76, 81, 38 P.3d 396 (2002).
RCW 64.34.455 states that, "[i]f a declarant or any other person subject to this chapter fails to comply with any provision hereof or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief." Additionally, the statute provides for an award of attorney fees to the prevailing party. RCW 64.34.455.
Chapter 64.34 RCW applies to condominiums created after July 1, 1990. RCW 64.34.010 (1). The Declaration for Eastport Shores was recorded in August 1980. Chapter 64.32 RCW, which applies to Condominiums created prior to July 1, 1990, contains no provision for a claim against a condominium board or an award of attorney fees. But, RCW 64.34.010 (1) applies the attorney fees/rights of action provision of RCW 64.34.455 to condominiums created prior to July 1, 1990, to "the extent necessary" in construing those sections regarding "events and circumstances occurring after July 1, 1990." Because, here, Berry asserts that the Board failed to comply with the Declaration in 2006, after July 1, 1990, RCW 64.34.455 applies.
Under the provisions in RCW 64.34.455, Berry has standing to assert a claim alleging that the Board failed to comply with the notice and approval requirements of the Declaration. She contends that failure to follow the procedural requirements adversely affected her. Because there is an express statutory grant for standing to assert a claim against a condominium association board that fails to comply with a declaration, which would allow recovery of attorney's fees but not damages, and such a claim is not estopped for failure to disclose it to the bankruptcy court, the trial court erred in dismissing Berry's counterclaim. However, because we conclude below the Board acted properly this error was harmless.
The statute, however, does not provide a basis for Berry's claims that the Board failed to conduct "a meaningful investigation into the issue of insurance coverage." The portions of the Declaration contained in the record, do not require such an investigation. Section 13.4 requires the Board to obtain liability insurance, but does not otherwise require investigation of possible insurance claims for repairs. Berry also asserts a claim for damages. RCW 64.34.455 provides a claimant may seek "appropriate relief." Neither the statute nor any case law address whether damages may be awarded under RCW 64.34.455. Passed in 1989, RCW 64.34.455 is Washington's adoption of the Uniform Condominium Act (1980). Section 4-117 of that Act is identical to RCW 64.34.455, except the uniform law explicitly allows a court to award damages based on "a willful failure to comply with this Act." Uniform Condominium Act § 4-117 (1980). Washington's adoption of the Uniform Condominium Act does not define appropriate relief, but we read the exclusion of the damages provision as purposeful. There is no damage claim; therefore, not standing to assert one.
The trial court ruled that Berry was judicially estopped from asserting the claim when she failed to disclose it on her bankruptcy schedules. Berry asserted a defense to a lien on a real property asset. Her statutory based claim does not entitle her to recover damages, only to those expenses related to the assertion of the claim. Therefore, the counterclaim is not an asset for purposes of bankruptcy. Further, we note that Eastport Shores does not claim that the trustee was the real party in interest. See Miller v. Campbell, ___ Wn.2d ___, ___, 192 P.3d 352, 355 (2008).
II. Validity of Special Assessment
Berry argues that the trial court erred in entering judgment for Eastport Shores, because the special assessment was invalid under the Declaration. Berry claims the special assessment actually included capital improvements, which required an affirmative approval of 75 percent of owners. We disagree with Berry's characterization that any repair that adds value to the property is necessarily a capital improvement and therefore subject to Article 10.3(i) of the Declaration.
Article 10.3(i) states that the Board is limited to acquire and pay for capital additions, but explicitly exempts improvements for the purpose of "restoring, repairing or replacing portions of the common areas." This clause indicates the Declaration contemplates repairs as distinct from capital improvements subject to Article 10.3(i). We hold that Article 10.3(i) does not apply to the repairs made here.
The Board acted under its authority proscribed in Article 14 of the Declaration. In May 2007, the Board notified condominium owners of the damage and special assessment stating that "[p]ursuant to Article 14 of the Association's Declaration when there is `major damage' to the condominium the Board is required to call a special meeting in order to give owners the opportunity to vote on whether or not to repair the damage and restore the condominium or to disband the condominium in accordance to Declaration Article 14.7." At the special meeting, held on June 13, 2007, owners were given an opportunity to vote against repairs. Only one, Berry, objected to continuing with the repairs and special assessment. The Board did not violate the Declaration in levying the special assessment.
Berry and Morgan argue that the Board failed to make a timely determination of the nature and extent of the damage or destruction and to provide notice to owners within 30 days of the date of the damage and destruction. They argued in their appellate briefing that dissolution of the condominium is the only remedy in the Declaration for failure to comply with the notice requirements. They abandoned this relief in their first amended complaint. Whether the meeting and notice provisions were timely is of no consequence except in the context of dissolution. For purposes of review here, the Board sent notice to the owners of the damage, proposed repairs, and held a special meeting where owners could formally object to the repairs and instead choose to dissolve the condominium. The Eastport Shores owners chose to repair the water damage.
Article 12.12 of the Declaration provides that an action to foreclose a lien for delinquent assessments "shall include a reasonable sum for attorney's fees and all costs and expenses reasonably incurred in preparation for or in the prosecution of said action, in addition to taxable costs permitted by law." Eastport Shores, as the prevailing part, is awarded attorney fees.
We affirm.