* Canal Station Condominium Assn, Resp. V. Ballard Leary Phase Ii, Lp, Et Ano., Petitioners

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
CANAL STATION NORTH
CONDOMINIUM ASSOCIATION, a
Washington nonprofit corporation,
Respondent,
v.
BALLARD LEARY PHASE II, LP, a
Washington limited partnership;
BRCP/CPI PHASE II, LLC, a
Washington limited liability company;
CONTINENTAL PACIFIC
INVESTMENTS REAL ESTATE FUND
1, LP, a Washington limited partnership;
CPI FUND 1, LLC, a Washington liability
company; CONTINENTAL
PROPERTIES, LLC, a Washington
limited liability company; CLAUDIO
GUINCHER and JANE DOE
GUINCHER, individually and the marital
community comprised thereof; and DON
BOWZER and JANE DOE BOWZER,
individually and the marital community
compromised thereof,
Appellants,
DOE AFFILIATES 1-50; DOE
PRINCIPALS 1-10; DOE DECLARANT
BOARD MEMBERS 1-10; DOE
CONTRACTORS 1-20; DOE
DECLARANT AGENTS 1-10; DOE
TRANSFEREES 1-50; UPONOR, INC.,
an Illinois corporation; DAHL
BROTHERS CANADA, LTD, a
Canadian corporation; BRASS-CRAFT
MANUFACTRUING COMPANY, a
Michigan corporation; DOE
MANUFACTURING COMPANIES 1-20;
doe distributing companies 1-20,
Defendants.
No. 69500-2-I
ORDER GRANTING
MOTION TO PUBLISH
 	 	 	 	 	 	 	 	 	 	 	 	 	

The appellants, Ballard Leary Phase II LP, BRCP/CPI Phase II LLC, Continental
Pacific Investments Realestate Fund I LP, CPI Fund I LP, Continenttal Properties LLC,
Claudio Guincher, Jane Doe Guincher, Don Bowzer, and Jane Doe Bowzer, have filed a
motion to publish. 	The respondent, Canal Station North Condominium Association, has
filed a response. 	A panel of the court has reconsidered its prior determination not to
publish the opinion filed for the above entitled matter on December 23, 2013, and has
found 	that it is of precedential value and 	should be published. 	Now, therefore it is
hereby
ORDERED that the written opinion filed December 23, 2013, shall be published
and printed in the Washington Appellate Reports.
, 2014.	DATED this 	3 	day of -nxJ/luuuU^.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CANAL STATION NORTH
CONDOMINIUM ASSOCIATION, a
Washington nonprofit corporation,
Respondent,
v.
BALLARD LEARY PHASE II, LP, a
Washington limited partnership; BRCP/CPI
PHASE II, LLC, a Washington limited
liability company; CONTINENTAL
PACIFIC INVESTMENTS REAL ESTATE
FUND 1, LP, a Washington limited
partnership; CPI FUND 1, LLC, a
Washington liability company;
CONTINENTAL PROPERTIES, LLC, a
Washington limited liability company;
CLAUDIO GUINCHER and JANE DOE
GUINCHER, individually and the marital
community comprised thereof; and DON
BOWZER and JANE DOE BOWZER,
individually and the marital community
compromised thereof,
Appellants,
DOE AFFILIATES 1-50; DOE
PRINCIPALS 1-10; DOE DECLARANT
BOAvRD MEMBERS 1-10; DOE
CONTRACTORS 1-20; DOE
DECLARANT AGENTS 1-10; DOE
TRANSFEREES 1-50; UPONOR, INC., an
Illinois corporation; DAHL BROTHERS
CAMADA, LTD, a Canadian corporation;
BRASS-CRAFT MANUFACTRUING
COMPANY, a Michigan corporation; DOE
MANUFACTURING COMPANIES 1-20;
doe distributing companies 1-20,
Defendants.
No. 69500-2-I
DIVISION ONE
PUBLISHED OPINION
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FILED: December 23, 2013
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/2
Appelwick, 	J. 	— 	The 	Association 	sued 	Ballard 	Leary 	and 	several 	other
defendants for alleged construction defects. 	Before filing an answer, Ballard Leary filed
a CR 12(b)(6) motion to dismiss two of the Association's claims for lack of standing and
two other claims as premature. 	When the trial court denied the motion, Ballard Leary
moved 	to 	compel 	arbitration 	pursuant 	to 	RCW 	64.55.100 	of 	the 	Washington
Condominium Act. 	The trial court issued an order striking Ballard Leary's arbitration
demand, finding that Ballard Leary waived arbitration. 	We hold that the motion under
CR 12(b)(6) did not constitute a waiver of the right to arbitrate and that arbitration was
timely demanded as to the claims against the statutory declarants. 	Arbitration was
properly denied as to the remaining claims and parties to the lawsuit. We affirm in part,
reverse in part, and remand for further proceedings consistent with this opinion.
FACTS
This lawsuit arises from alleged construction defects in the Canal Station North
Condominium development at 5450 Leary Avenue in Seattle, Washington. 	The Canal
Station North Condominium Association (Association) filed its first amended complaint
on May 15, 2012, alleging several causes of action: (1) breach of implied warranty of
qual ity under the Washington Condominium Act (WCA), chapter 64.34 RCW; (2) breach
of implied warranty of habitability; 	(3) breach 	of express warranty and contract;(4)
negligent misrepresentations; 	(5) 	breach 	of 	fiduciary 	duty; 	(6) 	violation 	of the
Washington 	Consumer 	Protection 	Act 	(CPA), 	chapter 	19.86 	RCW; 	(7) 	and
disgorgement of fraudulent transfers.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/3
The Association named several defendants: Ballard Leary Phase II LP (Ballard
Leary, 	the statutory 	declarant1); 	BRCP/CPI 	Phase 	II 	LLC 	(general 	partner of the
declarant); Continental Pacific Investments Real Estate Fund I LP (managing partner of
BRCP/CPI); 	CPI 	Fund 	I LLC (general 	partner of 	Continental 	Pacific); 	Continental
Properties LLC (manager of CPI Fund); Claudio Guincher (served on Association board
of directors) and Jane Doe Guincher; Don Bowzer (same) and Jane Doe Bowzer;2 as
well as other unidentified alter egos, unknown affiliates, and asset transferees of the
declarant. 	The Association referred to BRCP/CPI, Continental Pacific Investments, CPI
Fund, and Continental Properties collectively as "Continental."
The Association also alleged that three out-of-state corporations—Uponor Inc.,
Dahl 	Brothers Canada 	LTD, and 	Masco Corp.—"designed, 	manufactured, 	supplied,
and/or distributed defective component parts of plumbing systems installed" at Canal
Station. 	The 	Association 	referred 	to 	these 	three 	corporations 	collectively 	as
"manufacturer defendants."
1 "Declarant" means
(a) Any person who executes as declarant a declaration as defined
in subsection (17) of this section; or (b) Any person who reserves any
special declarant right in the declaration; or
(c) Any person who exercises special declarant rights or to whom
special declarant rights are transferred; or
(d) Any person who 	is the owner of a fee 	interest in the 	real
property which is subjected to the declaration at the time of the recording
of an instrument pursuant to RCW 64.34.316 and who directly or through
one or more affiliates is materially involved in the construction, marketing,
or sale of 	units 	in the 	condominium 	created 	by the 	recording 	of the
instrument.
RCW 64.34.020(15).
2 All the aforementioned defendants are appellants here. 	We refer to them
collectively as "Ballard Leary."
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/4
Ballard Leary filed a notice of appearance, but did not file an answer. 	Nor did
any party conduct discovery. 	Instead, on July 6, 2012 Ballard Leary filed a CR 12(b)(6)
motion to dismiss four of the Association's claims: 	violation of the CPA, 	negligent
misrepresentation, alter ego liability, and disgorgement of fraudulent transfers. 	Ballard
Leary claimed 	that 	the Association 	lacked 	standing 	to 	assert 	CPA violations 	and
negligent misrepresentation. 	Ballard Leary also argued that the Association's alter ego
liability and fraudulent transfer claims were premature and should be dismissed without
prejudice unless and until the Association prevailed on its claim for damages. 	In the
alternative, Ballard Leary requested that the trial court bifurcate the case and stay the
premature issues until the Association established liability and damages.
On August 3, 2012, the trial court denied Ballard Leary's CR 12(b)(6) motion.
Four days later, on August 7, 2012, Ballard Leary and the Continental defendants filed a
demand for arbitration pursuant to RCW 64.55.100. 	The demand encompassed "any
and 	all claims related to all of the above-captioned parties (plaintiff and defendants)."
The 	Association moved to strike the arbitration demand, arguing that Ballard Leary
waived arbitration by demonstrating intent to litigate. 	The Association also asserted that
certain defendants were not entitled to demand arbitration.
On August 21, 2012, the trial court issued an order denying Ballard 	Leary's
arbitration demand. 	The court found that the defendants "evidenced a clear intent to
litigate the claims herein, rather than arbitrate them under RCW 64.55.100." 	The court
entered specific findings:
(1) 	defendants' 	CR 	12(b)(6) 	motion 	sought 	to 	narrow 	specific
liability issues for trial while expressly leaving others for determination by
the trier of fact;
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/5
(2) 	defendants' 	motion 	sought 	to 	stage 	the 	litigation 	in 	an
alternative motion for bifurcating the trial of liability and damages from the
trial of alter ego and Uniform 	Fraudulent Transfers Act[, chapter 19.40
RCW,] claims;
(3) 	prior to 	losing those motions, 	defendants 	made no effort to
invoke or preserve the arbitration forum;
(4) defendants' briefing references "jury confusion" as a basis for
bifurcating or dismissing specific claims; and
(5) granting the defendants' demand for arbitration, coming as it did
only after defendants lost a motion intended to shape the posture of the
litigation at trial, would tend to promote improper forum shopping.
Therefore, the trial court concluded "that defendants impliedly waived arbitration by their
conduct, 	the 	timing 	of 	their 	motions 	practice 	and 	demand, 	and 	their 	express
representations to the court."
The trial court further found that:
[Djefendants 	CPI 	Fund 	1, 	LP; 	Continental 	Properties 	LLC; 	Claudio
Guincher, Jane Doe Guincher; Don Bowzer and Jane Doe Bowzer are not
alleged or shown to be declarants having a 	right to 	invoke arbitration
under RCW 64.55.100, and are not alleged or shown to be subcontractors
or 	material 	suppliers who 	may 	be 	brought into 	a 	statutory arbitration
proceeding under RCW 64.55.150. 	Accordingly, it is not proper to refer
cases against them to arbitration.
The 	court 	added, 	"Other 	manufacturer defendants 	likewise 	do 	not fall 	within 	the
statutory reference to 'parties.'"
Ballard 	Leary 	moved 	for 	reconsideration. 	In the 	alternative, 	Ballard 	Leary
requested that the trial court certify the issue for immediate appeal. 	The trial court
deni ed both requests.
Ballard Leary subsequently filed a notice for discretionary review with this court,
requesting review of the order denying its arbitration demand and the order denying its
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/6
motion for reconsideration. 	Our commissioner concluded that the trial court's decision
denying arbitration is appealable as a matter of right under RAP 2.2(a)(3).
DISCUSSION
Ballard Leary argues that the trial court erred in denying its arbitration demand
and finding that it waived the right to arbitrate under RCW 64.55.100 by filing a CR
12(b)(6) motion to dismiss. 	Ballard Leary also contends that the trial court erred in
ruling that not all the defendants are subject to arbitration under RCW 64.55.100 and
RCW 64.55.150. 	The Association moved to strike the appendix from Ballard Leary's
reply brief, to which Ballard Leary objected.
RCW 64.55.100(1) provides:
If the 	declarant, 	an 	association, 	or 	a 	party 	unit 	owner 	demands 	an
arbitration by filing such demand with the court not less than thirty and not
more than ninety days after filing or service of the complaint, whichever is
later, the parties shall 	participate in a 	private arbitration hearing. 	The
declarant, the association, and the party unit owner do not have the right
to compel arbitration without giving timely notice in compliance with this
subsection. 	Unless 	otherwise 	agreed 	by 	the 	parties, 	the 	arbitration
hearing shall commence no more than fourteen months from the later of
the filing or service of the complaint.
This provision is part of the WCA and creates the arbitration right in dispute here.
I. 	Waiver of Arbitration
Ballard Leary contends that it could not waive arbitration as a matter of law,
because RCW 64.55.100 creates a mandatory, unwaivable right to arbitrate. 	In the
alternative, Ballard Leary argues that even if it could waive arbitration by its conduct, it
did 	not do so. 	Specifically, Ballard Leary contends that its CR 12(b)(6) motion to
dismiss was a procedural motion that did not go to the merits of the case. 	Ballard Leary
emphasizes that it demanded arbitration within 90 days of the service of the complaint
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/7
and within a reasonable time after the trial court denied its motion to dismiss. 	We first
address whether Ballard Leary waived arbitration by its conduct.
We review denial of a motion to compel arbitration de novo. 	Verbeek Props.,
LLC v. GreenCo Envtl.. 	Inc.. 159 Wn. App. 82, 86, 246 P.3d 205 (2010). 	The party
opposing arbitration bears the burden of showing the arbitration clause is inapplicable or
unenforceable. 	kL at 86-87. 	Washington has a strong public policy favoring arbitration.
Heights at Issaquah Ridge Owners Ass'n v. Burton Landscape Grp., Inc., 148 Wn. App.
400, 	405, 	200 	P.3d 254 (2009). 	We must indulge every presumption 	in favor 	of
arbitration, whether the issue is construction of an arbitration clause or allegation of
waiver, delay, or another defense to arbitrability. Verbeek Props., 159 Wn. App. at 87.
Waiver is the voluntary and 	intentional relinquishment of a 	known 	right. 	Id.
Waiver of an arbitration clause may be accomplished expressly or by implication. 	Lake
Wash. Sch. Dist. No. 414 v. Mobile Modules Nw., Inc., 28 Wn. App. 59, 62, 621 	P.2d
791 	(1980). 	However, waiver "cannot be found absent conduct inconsistent with any
other intention but to forego a known right." jd. 	Put another way, a party waives its right
to arbitrate if it elects to litigate instead of arbitrate. 	Otis Hous. Ass'n. Inc. v. Ha, 165
Wn.2d 582, 588, 201 P.3d 309 (2009).
The determination of whether a party waived arbitration by conduct depends on
the facts of the particular case and is not susceptible to bright line rules. 	River House
Dev. Inc. v. Inteqrus Architecture. PS, 167 Wn. App. 221, 237, 272 P.3d 289 (2012). 	In
Otis Housing, the Washington Supreme Court held that Otis Housing Association (OHA)
waived arbitration by its conduct. 	165 Wn.2d at 588. 	OHA leased a hotel from John
and 	Min Ha with a 	purchase option. 	\± at 584-85. 	OHA announced its intent to
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/8
exercise the option, but no sale closed before the option expired. 	Id. at 585. 	Then,
after OHA failed to pay rent for six months, the Has brought an unlawful detainer action,
jd. 	In a show cause hearing, OHA argued that it timely exercised the purchase option.
Id. at 585-86. 	Only after the trial court disagreed, did OHA move to compel arbitration.
Id. at 586. 	The Supreme Court held that OHA's conduct of arguing that it exercised the
option as a defense to the unlawful detainer action was completely inconsistent with its
intent to arbitrate, 	jd. at 588. 	"Having lost that issue, [OHA] may not later seek to
relitigate the same issue in a different forum." 	jd.
Similarly, in River House, the party demanding arbitration already attended an in-
person status conference with the assigned judge, agreed to a trial schedule and date,
exchanged a trial witness list with the opposing party, participated in formal discovery,
and 	represented to the court that it was preparing for trial. 	167 Wn. App. at 238-39.
This amounted to conduct inconsistent with any other intent but to forgo arbitration. 	Id.
at 239. 	Conversely, in Verbeek Properties. Verbeek's preliminary attempt to remove a
lien was not an election to litigate instead of arbitrate. 	159 Wn. App. at 92. 	Verbeek's
motion to dismiss the lien as frivolous raised different issues than those it later sought to
arbitrate. 	Id. at 91-92. 	In essence, a party to a lawsuit who claims the right to arbitrate
mus ttake some action to enforce that right within a reasonable time. 	Otis Housing, 165
Wn.2d at 588.
The 	Washington 	Supreme 	Court 	recently 	applied 	this 	rule 	in Townsend 	v.
Quadrant Corp.. 173 Wn.2d 451, 463, 268 P.3d 917 (2012). 	There, homeowners sued
Qua<jrant, 	as 	well 	as 	its 	parent 	companies 	Weyerhaeuser 	Real 	Estate 	Company
(WRcECO) and Weyerhaeuser Company (Weyerhaeuser), alleging shoddy workmanship
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/9
in building their homes, 	jd. at 453-54. 	Shortly after receiving notice of the lawsuit,
WRECO and Weyerhaeuser moved for summary judgment. 	jcL at 454. 	They argued
that, aside from the parent-subsidiary relationship with Quadrant, neither of them had
any connection to the plaintiffs or their houses, 	jd. 	The superior court denied the
motion, 	jd. 	WRECO and Weyerhaeuser then moved to compel arbitration. 	jcL at 455.
On appeal, we held that WRECO's and Weyerhaeuser's motion for summary judgment
did not waive their right to arbitrate, 	jd.
The Washington Supreme Court affirmed this court and held that WRECO's and
Weyerhaeuser's conduct did not evince intent to waive arbitration, 	jd. at 463. 	They
moved to compel arbitration promptly after the superior court denied their motion for
summary judgment. 	jpL 	And, their summary judgment motion dealt only with their
assertions that they had no connection to the lawsuit, 	jd. 	The court distinguished these
facts from Naches Valley Sch. Dist. No. JT3 v. Cruzen, 54 Wn. App. 388, 395-96, 775
P.2d 	960 (1989). 	Townsend, 	173 	Wn.2d 	at 	462. 	In that case, 	teachers waived
arbitration when they prevailed on a substantive summary judgment motion disputing
the meaning of their collective bargaining agreement. 	jcL at 462-63. 	The Townsend
court emphasized 	that, 	in contrast, WRECO 	and Weyerhaeuser moved to compel
arbitration promptly after the superior court denied their motion for summary judgment,
jd, at 463.
In its CR 12(b)(6) motion, Ballard Leary asked the trial court to (1) dismiss the
Association's CPA and negligent misrepresentation claims for lack of standing and (2)
dismiss 	without 	prejudice 	the 	alter 	ego 	liability 	and 	fraudulent 	transfer 	claims 	as
premature (or, alternatively, bifurcate and stay those claims). Townsend controls on the
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/10
standing issue. 	Ballard Leary disputed whether the Association could bring certain
claims. 	Without standing, the Association would not be the proper party to bring suit on
those claims nor to arbitrate them. 	See Ullerv v. Fulleton. 162 Wn. App. 596, 604, 256
P.3d 406 (2011) ("[T]he claims of a plaintiff determined to lack standing are not his or
hers to assert and cannot be resolved in whole or in part on the merits."). 	This is
comparable to WRECO's and Weyerhaeuser's argument that they were not proper
parties to the lawsuit. 	Townsend, 173 Wn.2d at 462-63. 	Such conduct did not waive
arbitration there and neither does it waive arbitration here.
The question is then whether Ballard Leary waived arbitration by asking the court
to dismiss or stay claims as premature. 	Ballard Leary argued in its CR 12(b)(6) motion
that the alter ego and fraudulent transfer issues were secondary to the Association's
claim for damages and should be dismissed without prejudice until the Association
actually prevailed on its claim for damages. 	In the alternative, Ballard Leary asked the
trial 	court to exercise its authority under CR 42(b) to bifurcate the case and stay the
premature issues. 	Ballard Leary analyzed the CR 42(b) factors for bifurcating a case:
"The court, in furtherance of convenience or to avoid prejudice, or when separate trials
will be conducive to expedition and economy, may order a separate trial of any claim."
CR 42(b). 	In this analysis, Ballard Leary discussed jury confusion and trial expediency
as a 	basis to bifurcate.
We must indulge every presumption 	in favor of arbitration. 	Discussing jury
confusion 	and trial 	expediency is consistent with 	making a 	CR 42(b) 	argument to
bifurcate, and not necessarily consistent with intent to waive arbitration. 	The arbitration
right available under the statute involved less than all the parties and less than all of the
10
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/11
claims. 	A motion to dismiss other parties or claims, stay those claims, or bifurcate the
proceedings would be compatible with the exercise of that arbitration right.3 	Such a
motion does not necessarily suggest waiver.
Moreover, seeking to compel arbitration after losing on bifurcation is not the type
of forum shopping at issue in Otis Housing. 	Only after losing on the merits did OHA
seek to compel arbitration. 	Otis Housing. 165 Wn.2d at 586. 	In contrast, Ballard Leary
lost 	on 	a 	preliminary 	procedural 	motion 	and 	then 	immediately 	sought 	to 	compel
arbitration. 	Requesting dismissal without prejudice or bifurcation does not go to the
merits of alter ego liability or fraudulent transfers. This is analogous to Townsend.
Ballard Leary also did not evince other intent to litigate rather than arbitrate. 	For
instance, it did not file an answer or conduct any discovery. 	Ballard Leary also moved
to compel arbitration only four days after the trial court denied the CR 12(b)(6) motion.
There is no dispute that this was within 90 days from service of the complaint, as
required by RCW 64.55.100. 	Otis Housing does not hold that a party must immediately
preserve its right to arbitrate. 	See also Verbeek Props.. 159 Wn. App. at 90 (holding
that a party does not waive arbitration simply by failing to invoke it in the complaint or
answer). 	Rather, the rule is that a party must take some action to enforce its right to
arbitrate within a reasonable time. 	Otis Housing, 165 Wn.2d at 588. 	Ballard Leary did
so here. 	Aside from discussing jury confusion and 	trial expediency as a basis to
bifurcate, Ballard Leary evinced no other intent to litigate rather than arbitrate. 	Best
practice would have been for Ballard Leary to preserve its right to arbitrate in its CR
3 Had Ballard Leary been clear with the court about its arbitration rights and
intent to invoke them, we have no doubt the trial court would have viewed the issue
diffe rently.
11
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/12
12(b)(6) motion. 	However, we cannot say that Ballard Leary's conduct is consistent
with intent to forego its right to arbitrate.
We 	hold 	that 	Ballard 	Leary did 	not 	waive 	its 	right 	to 	arbitrate 	under RCW
64.55.100 	by 	filing the 	CR 	12(b)(6) 	motion 	to 	dismiss 	before 	seeking 	to 	compel
arbitration. 	The trial court erred in refusing to grant the demand for arbitration with the
statutory declarants. 	We reverse. 	Because Ballard Leary did not waive arbitration by
its conduct, we need 	not decide whether the WCA creates an 	unwaivable right to
arbitrate.4
II. 	Proper Declarants Under RCW 64.55.100
Ballard 	Leary argues that the trial court erred when 	it ruled that not all the
defendants are subject to arbitration, because they are not statutory declarants under
RCW 	64.55.100. 	Specifically, 	the 	trial 	court 	found 	that 	defendants 	CPI 	Fund,
Continental 	Properties, 	Guincher, 	and 	Bowzer, 	are 	not 	declarants 	under 	RCW
64.55.100 and are therefore not proper parties to arbitration. 	Ballard Leary contends
this was error, because the Association alleged in its complaint that these defendants
are agents, affiliates, and/or alter egos of the declarant.5 	Ballard Leary argues this
constitutes a judicial admission 	that the 	defendants are 	in fact declarants, 	so 	the
Association should be equitably estopped from arguing to the contrary.
4 Because we do 	not reach this issue, we need not consider Ballard Leary's
argument regarding Satomi Owners Ass'n v. Satomi. LLC, 167 Wn.2d 781, 805, 225
P.3d 213 (2009). 	Therefore, we do not consider the Association's 	motion to strike
Ballard Leary's Satomi 	argument. 	We 	find 	it worth noting, 	however, that 	RCW
64.55.100(1) clearly contemplates waiver if the party seeking arbitration does not make
a timely demand as required by the statute.
5The parties do not dispute that Ballard Leary is the statutory declarant.
12
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69500-2-1/13
Ballard Leary points to several paragraphs in the Association's first amended
complaint to argue that the Association admitted the defendants are declarants. 	Two of
these paragraphs, by example, state:
2.14 	Pursuant to RCW 64.34.020(1) and/or RCW 19.40.011(1),
all or some of Declarant, Continental, DOE AFFILIATES 1-50 and DOE
PRINCIPALS 	1-10 	are 	alter 	egos 	of 	one 	another 	and/or 	qualify 	as
"affiliates" of the Declarant, and/or pursuant to RCW 19.40.011(7) qualify
as "insiders" of Declarant and one another. 	As alter egos of Declarant,
these defendants are each responsible for all tort, contract, and warranty
liabilities alleged herein against the Declarant.
2.16 	DOE DECLARANT BOARD MEMBERS 1-10 are currently
unidentified persons who were appointed by the Declarant and/or its alter
egos and owners to serve, as agents of Declarant during the period of
declarant control of the Association.
Based on this language, the Association does not allege that CPI Fund, Continental
Properties, Guincher, 	and 	Bowzer are declarants. 	Rather, 	it alleges that they are
affiliates, alter egos, and/or agents of the declarant, Ballard Leary. 	This does not, as
Ballard Leary claims, mean that they are themselves declarants. 	Ballard Leary cites no
authority for its proposition that alter egos or agents of the declarant must be joined in
arbitration. 	Nor does Ballard Leary cite any authority supporting its theory that alter
egos or agents must be treated 	the same as the defendant. 	Thus, we need 	not
consider it. 	RAP 10.3(a)(6); State v. McNeair. 88 Wn. App. 331, 340, 944 P.2d 1099
(199)7) (failure to cite authority constitutes a concession that the argument lacks merit).
In fact, the WCA contemplates limited parties to the arbitration. 	RCW 64.55.100
specifies: "If the declarant, an association, or a party unit owner demands an arbitration
by filing 	such demand with 	the 	court... the 	parties shall participate 	in 	a 	private
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No. 69500-2-1/14
arbitration 	hearing." 	(Emphasis added.) 	Ballard 	Leary contends that "the 	parties"
means "all the parties to a lawsuit," not just the declarant, association, and unit owners.
However, the statute does not so state. 	See In re Pers. Restraint of Bovan, 157 Wn.
App. 588, 599, 238 P.3d 528 (2010) ("We will not read into the statute words that are
not there."). 	The "parties" most plausibly relates back to the three parties specified in
the 	statute: 	the 	declarant, 	the 	association, 	and 	unit 	owners. 	RCW 64.55.100(1).
Reading RCW 64.55.100 as a limited arbitration right is supported by the fact that not
every claim arising 	under the WCA can be enforced against only a declarant. 	For
instance, both declarants and dealers6 can be liable for breach of implied warranties of
quality under RCW 64.34.445. 	Likewise, board members owe fiduciary duties to unit
owners under RCW 64.34.308(1).
Furthermore, reading "the parties" as "all parties to a lawsuit" renders another
provision of the WCA superfluous. 	Kilian v. Atkinson. 147 Wn.2d 16, 21, 50 P.3d 638
(2002) ("Statutes must be construed so that all the language is given effect and no
portion 	is 	rendered 	meaningless 	or 	superfluous."). 	RCW 	64.55.150 	provides 	a
mechanism for joining subcontractors and suppliers in arbitration. 	If those parties to the
lawsuit were automatically joined under RCW 64.55.100, as Ballard Leary contends,
then 	RCW 64.55.150 would be meaningless.
CPI Fund, Continental 	Properties, 	Guincher, 	and 	Bowzer are 	not declarants.
Because they are not declarants, they are not proper parties to the arbitration under
RCVA/ 64.55.100. 	We hold that the trial court did not err in refusing to refer them to
6 "'Dealer' means a person who, together with such person's affiliates, owns or
has a right to acquire either six or more units in a condominium or fifty percent or more
of th e units in a condominium containing more than two units." RCW 64.34.020(14).
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No. 69500-2-1/15
arbitration. 	And, notably, the trial court did not exclude BRCP/CPI (general partner of
Ballard Leary) and Continental Pacific Investments (managing partner of BRCP/CPI)
from arbitration.
III. 	Manufacturer Defendants
Similarly, 	Ballard 	Leary 	argues 	that 	the 	Association's 	claims 	against 	the
manufacturer 	defendants—Masco, 	Dahl 	Brothers, 	and 	Uponor—should 	also 	be
submitted 	to 	arbitration. 	The 	Association 	alleged 	that 	these 	three 	manufacturer
defendants "designed, manufactured, supplied, and/or distributed" defective plumbing
products. 	(Emphasis added.) 	Ballard Leary contends that this brings them within the
gam ut of RCW 64.55.150.
RCW 64.55.150 provides:
Upon the 	demand of a 	party to an 	arbitration demanded 	under RCW
64.55.100, any subcontractor or supplier against whom such party has a
legal claim and whose work or performance on the building in question
becomes an issue in the arbitration may be joined in and become a party
to the arbitration.
Based on 	the 	Association's 	complaint, 	the 	manufacturer defendants 	are 	suppliers
whose work on the building is at issue. 	However, RCW 64.55.150 requires the party
asserting a legal claim against the supplier to demand for that supplier to be joined in
arbitration: 	"Upon the demand 	of a 	party to an 	arbitration 	demanded 	under RCW
64.55.100, 	any 	subcontractor 	or 	supplier 	against 	whom 	such 	party 	has 	a 	legal
claim ...." (Emphasis added.) To join the manufacturer defendants in arbitration here,
the 	Association, which 	holds the claim, 	must make a demand to join them.7 	The
7 See also Mark F. O'Donnell & David E. Chawes, Improving the Construction
and 	Litigation 	Resolution 	Process: 	The 	2005 	Amendments 	to 	the 	Washington
Condominium Act Are a Win-Win for Homeowners and Developers. 29 Seattle U. L.
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No. 69500-2-1/16
Association has not done so. 	Because Ballard Leary does not currently have a claim
against the manufacturer defendants, it cannot join them in arbitration.8 	Therefore, the
trial court did not err in concluding that these defendants were not proper parties to the
arbitration based on the status of the pleadings.
IV. 	Association's Motion to Strike
The Association moved to strike material from the appendix in Ballard Leary's
reply brief, specifically: the declaration of Jennifer Smitrovich, the summary judgment
motion from Townsend, and the law review article and legislative reports.
In her declaration, Smitrovich warranted, as an attorney for Ballard Leary and the
Continental defendants, that they did not request any discovery, answer any discover,
request any depositions, 	conduct any expert site investigations, file any dispositive
motions, or file an answer before demanding arbitration. 	The Association is correct that
this improperly supplements the record without our approval under RAP 9.10 and 9.11.
And, regardless, the record already supports Smitrovich's statements. 	Similarly, the
Townsend 	summary 	judgment 	motion 	provides 	additional 	facts 	outside 	the 	two
published 	opinions 	in 	that 	case. 	We 	grant 	the 	Association's 	motion 	to 	strike
Smitrovich's declaration and the Townsend summary judgment motion.
We deny the Association's motion to strike the legislative reports and law review
article. 	Legislative reports may be attached in an appendix under RAP 10.4(c): "If a
Rev. 515, 533 (2006) ("Upon the demand of a party who has a legal claim against a
subcontractor, such subcontractor may be joined in the arbitration if the work performed
by the subcontractor is at issue in that proceeding.").
8 Ballard Leary asserted at oral argument that it has counterclaims against the
man ufacturer defendants. 	However, nothing in the record shows that Ballard Leary
actually brought counterclaims against the manufacturer defendants.
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No. 69500-2-1/17
party presents an issue which requires study of a statute ... the party should type the
material portions of the text out verbatim or include them by copy in the text or in an
appendix to the brief." 	Likewise, the law review article about the WCA did not establish
specific facts of this case, but rather "'legislative facts'" that we may consider when
determining the constitutionality or interpretation of a statute. 	See State ex rel. T.B. v.
CPC Fairfax Hosp.. 129 Wn.2d 439, 453-54, 918 P.2d 497 (1996) (refusing to strike
scholarly articles attached in appendices).
We affirm in part, reverse in part, and remand for further proceedings consistent
with this opinion.
WE CONCUR:
L~i 	e.i 	<£**, 	-J
17