Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE SCOTT HILLIUS; TOM STAEHR; No. 87954-5-I RANDY DRUBEK; MARK MIEDEMA; DANIEL and SONJA LYONS; DOUGLAS and ANGELIQUE SCARLETT; STEVEN and LISA ZEHM; and RONALD SARAN, Appellants, v. 18 PARADISE LLP; and MJ PUBLISHED OPINION MANAGEMENT, LLC doing business as HOMESTEAD FARMS GOLF COURSE, Respondents, WILLIAM (MICK) O’BRYAN; and JOSH WILLIAMS, Defendants. BOWMAN, A.C.J. — Homeowners at the “Homestead Planned Residential Development” (Homestead PRD) in Lynden, Washington, appeal from the trial court’s order dismissing their claim that 18 Paradise LLP and MJ Management LLC violated the Consumer Protection Act (CPA), chapter 19.86 RCW, by collecting unauthorized special assessment and monthly maintenance fees. The homeowners also appeal the trial court’s refusal to issue a money judgment as further relief under RCW 7.24.080 after issuing a declaratory judgment that the fees were unlawfully collected. And both parties request attorney fees on appeal. No. 87954-5-I/2 We conclude that the trial court did not err by dismissing the homeowners’ CPA claim because they failed to show that the unauthorized collection of the special assessment and fees affected the public interest. But the trial court abused its discretion by refusing to issue a money judgment as further relief. We affirm in part, reverse in part, and remand for the trial court to issue a money judgment. And we decline to award attorney fees to either party. FACTS In January 1992, the city of Lynden enacted Lynden Ordinance 905, which it codified under chapter 19.29 of the Lynden Municipal Code (LMC). The ordinance established a planned residential development (PRD) zone and created regulations governing the creation and completion of a PRD. In July 1992, Homestead Northwest LLC (Homestead NW) created the Homestead PRD in Lynden. The Homestead PRD consists of roughly 250 acres with residential areas, a golf course, and common open space (COS). Homestead NW drafted a “Master Declaration of Covenants, Conditions, Restrictions and Reservations for Homestead [PRD]” (Master Declaration), designating itself as the declarant and reserving various rights, including ownership of the COS “so that it may be maintained by golf course maintenance personnel.” It then granted an easement, allowing all Homestead PRD residents to use the COS subject to payment of a monthly maintenance fee so that the COS “may be properly managed and maintained.” The Master Declaration allowed for Homestead NW to increase the maintenance fee annually by “up to” five percent. 2 No. 87954-5-I/3 The Master Declaration also established a “Homestead Owners Association” (HOA), consisting of every person or entity who is a record owner in any Homestead PRD lot or condominium unit.1 But it explained that the HOA “shall operate in [an] advisory capacity only” to Homestead NW so long as Homestead NW or its successors own the COS.2 The city of Lynden approved the Master Declaration, including its HOA provision. In 2013, 18 Paradise bought Homestead PRD. And in 2017, 18 Paradise executed a management agreement with MJ. Under the agreement, MJ would maintain the COS, operate the golf course, and collect all rents, fees, and other charges, including the monthly maintenance fee. MJ would pay 18 Paradise a fixed monthly amount and receive as compensation “all funds due and payable after expenses are paid.” On June 28, 2019, MJ purported to amend the Master Declaration to impose a one-time special assessment of $83 per Homestead PRD resident. And, on December 3, 2019, MJ again purported to amend the Master Declaration to increase monthly maintenance fees from $36 to $93, representing a cumulative fee increase of five percent per year since 1992. In May 2020, Scott Hillius, Tom Staehr, Daniel and Sonja Lyons, Douglas and Angelique Scarlett, Mark Miedema, Mark and Cheri Holmes, and Steven and Lisa Zehm (collectively homeowners) sued 18 Paradise, MJ, the city of Lynden, 1 Former LMC 19.29.090 and .020 (1992) required all PRDs to establish and fund an HOA “[t]o preserve community facilities and open space.” See Ordinance 905. 2 Section 3.10 of the Master Declaration requires parcel owners to accept conveyance of the COS from Homestead NW or its successors should they choose to transfer ownership. 3 No. 87954-5-I/4 Mao Hua Chen, Mount Tai Investment Inc., Mount Emei Investment Inc., William O’Bryan, and Josh Williams. The homeowners alleged that MJ’s special assessment and fee increases violated the CPA, breached the terms of the Master Declaration, and violated the federal racketeer influenced and corrupt organization act (RICO), 18 U.S.C. chapter 96. The homeowners also sought several declaratory judgments, injunctions, and the creation of express and constructive trusts. Finally, the homeowners sought class certification “of over 600 Parcel Owners.” On November 25, the court certified the homeowners as a class, defined as “[e]very person or entity who is a record owner of a fee or undivided fee interest in any Lot or Condominium Unit that is subject to the Master Declaration.” The homeowners amended their complaint four times over the next two years. They dismissed their RICO claim and defendants Chen, Mount Tai, and Mount Emei. In February 2022, the trial court granted Lynden’s summary judgment motion and dismissed the city with prejudice. In September, the homeowners moved for partial summary judgment to establish several preliminary facts. As a result, the court issued an order establishing that (1) MJ acted as the agent of 18 Paradise under the management agreement when it issued the special assessment and increased the management fees, (2) the management agreement required MJ to obtain express permission from 18 Paradise before issuing the assessment or increasing the fees, and (3) MJ failed to obtain express permission. 4 No. 87954-5-I/5 On January 11, 2023, the homeowners filed their fifth amended complaint,3 naming 18 Paradise, MJ, O’Bryan, and Williams as defendants.4 The complaint again alleged that the special assessment and maintenance fee increases violated the CPA. And they sought a declaratory judgment that MJ’s amendments to the Master Declaration establishing the increases were invalid. As a result, they asked for a permanent injunction requiring 18 Paradise “to cease its unfair and deceptive acts and practices” of collecting unlawful maintenance fees. The homeowners also sought a declaratory judgment that the HOA provision of the Master Declaration did not comply with the requirements of former LMC 19.29.090 and that 18 Paradise’s ownership of the COS violated former LMC 19.29.090. And they asked for a permanent injunction for 18 Paradise to “cease its private ownership of the COS.”5 On March 3, 2023, 18 Paradise moved for partial summary judgment, seeking dismissal of the homeowners’ request for a declaratory judgment that its ownership of the COS violated former LMC 19.29.090 and for an injunction ordering 18 Paradise to “cease its private ownership of the COS.” 18 Paradise argued that the Master Declaration clearly rests ownership of the COS with them and that the homeowners’ claims amounted to a quiet title action. In their response, the homeowners disavowed any intent to quiet title to the COS. They told the court, “This is not and never has been or could be a quiet title action.” 3 The fifth amended complaint lists the plaintiff homeowners as Hillius, Staehr, Randy Drubek, Miedema, the Lyonses, the Scarletts, the Zehms, and Ronald Saran. 4 The court later dismissed O’Bryan and Williams from the lawsuit. That order is not at issue in this appeal. 5 The homeowners also alleged several other claims not relevant to this appeal. 5 No. 87954-5-I/6 Instead, it is a CPA lawsuit. And “[t]he fact that a lawsuit questions whether ownership of land is lawful does not convert it into a quiet title action.” The court granted partial summary judgment for 18 Paradise. It concluded that the Master Declaration rests ownership of the COS with 18 Paradise and that the homeowners’ claims seek to divest 18 Paradise of that ownership. It ruled that “[a]s a matter of law, [the homeowners] do not have a right to such relief.” On January 26, 2024, 18 Paradise again moved for partial summary judgment, this time seeking dismissal of the homeowners’ CPA claim.6 18 Paradise argued that the homeowners “are unable to show how private, voluntary transactions affect the public interest” under the factors established in Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). The homeowners argued that the Hangman Ridge public interest factors were abrogated in 2009 when our legislature codified a public interest test under RCW 19.86.093. See LAWS OF 2009, ch. 371, § 2. So, the court should look to only that statute to determine whether the alleged deceptive or unfair conduct affects the public interest. The trial court concluded that the “actions at issue were between a fixed set of participants,” so the homeowners failed to satisfy the public interest test under either Hangman Ridge or RCW 19.86.093. The court entered an order dismissing the homeowners’ CPA claim and certified its order as a final judgment under CR 54(b). 6 MJ joined in the motion. 6 No. 87954-5-I/7 The homeowners’ remaining claims proceeded to a bench trial on April 30, 2024.7 The court defined the remaining claims as requests for declaratory judgment on (1) the validity of MJ’s amendments to the Master Declaration that established a special assessment and raised monthly maintenance fees, (2) whether use of maintenance fees is restricted to only maintenance of the COS, and (3) whether the HOA provision of the Master Declaration violated former LMC 19.29.090. The trial court issued its oral ruling on July 3, 2024. It concluded that MJ’s purported special assessment and maintenance fee increases were void because MJ did not seek permission from 18 Paradise before amending the Master Declaration. And it concluded that the maintenance fees are not tied to the actual cost of maintenance. Finally, the court concluded that the Master Declaration did not comply with former LMC 19.29.090. It reasoned that the code required the establishment of an HOA, and while the Master Declaration called for an HOA, the Homestead PRD had no current active association. On September 11, 2024, the court issued its written “Findings of Fact, Conclusions of Law, and Order on Remaining Claims.” The order largely tracked with the court’s oral ruling. But, when addressing its HOA ruling, the court said that any HOA would likely need to be “some manner of an advisory association, as it would not own the [COS] or other property.” And it noted that “[i]t is not before the Court to opine further on how to establish a homeowner association 7 The trial transcript is not part of the appellate record. 7 No. 87954-5-I/8 here.”8 Several months later on March 24, 2025, the homeowners petitioned for further relief, seeking “specific recordable orders” invalidating MJ’s unlawful amendments to the Master Declaration “in the hope that such an order will instigate 18 Paradise and MJ . . . to comply with the balance of the judgment without further action by the Court.” Specifically, the homeowners sought a means to compel 18 Paradise to refund the unlawfully collected special assessment and maintenance fees, as “[n]othing has been done to return payments made by Homestead [PRD] owners.” The court denied the petition.9 On June 10 and July 2, 2025, after 18 Paradise continued to refuse to refund any assessments or maintenance fees, the homeowners again petitioned for further relief. This time, the homeowners summarized the amount of unlawfully collected fees and sought a money judgment. The homeowners argued that a money judgment was necessary and proper under RCW 7.24.080 to enforce the court’s declaratory judgment rulings. The court held a show cause hearing on August 26, 2025. On November 12, 2025, the court entered a consolidated order denying both petitions, finding that relief was “neither necessary nor proper” because the homeowners did not plead monetary claims or seek monetary determinations at trial. The court 8 The homeowners ask us to “correct” the trial court’s ruling and clarify that the HOA must be more than an advisory body. But the issue before the court was whether the Master Declaration violated former LMC 19.29.090, not how 18 Paradise should remedy the violation. So, we decline to disturb the trial court’s ruling. 9 This order is not in the appellate record. 8 No. 87954-5-I/9 reasoned that the request exceeded the scope of the declaratory claims heard at trial. The homeowners appeal. ANALYSIS The homeowners argue that the trial court erred by dismissing their CPA claim at summary judgment and refusing to grant their petitions for further relief after trial.10 And both parties request attorney fees on appeal. We address each argument in turn. 1. CPA The homeowners argue the trial court erred by dismissing their CPA claim for failure to show that their allegations affect the public interest. We disagree. We review an order granting summary judgment de novo. Deutsche Bank Nat’l Tr. Co. v. Slotke, 192 Wn. App. 166, 170, 367 P.3d 600 (2016). 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. Id. at 170-71. The moving party has the burden to show there are no genuine issues of material fact. Id. at 171. Then, the burden shifts to the other party to set forth specific facts rebutting the moving party’s contentions and disclosing the existence of a 10 The homeowners also argue that the trial court erred by dismissing at summary judgment their requests for a declaratory judgment that 18 Paradise’s ownership of the COS violates former LMC 19.29.090 and an injunction compelling 18 Paradise to “cease its private ownership” of the COS. But the homeowners do not show how 18 Paradise’s ownership of the COS violates former LMC 19.29.090. See RAP 10.3(a)(6) (brief should contain argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record). And, even if they made such a showing, it does not follow that the remedy would be an injunction divesting 18 Paradise of its ownership. 9 No. 87954-5-I/10 genuine issue of material fact. Id. We review all facts and draw reasonable inferences from them in a light most favorable to the nonmoving party. Id. Under the CPA, “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are . . . unlawful.” RCW 19.86.020. To establish a CPA claim, a plaintiff must show (1) an unfair or deceptive practice (2) occurring in trade or commerce (3) that affects public interest, (4) an injury to plaintiff’s business or property, and (5) that the unfair or deceptive practice caused the injury. Hangman Ridge, 105 Wn.2d at 784-85. In Hangman Ridge, our Supreme Court created two distinct pathways to determine whether an alleged unfair or deceptive act affects the public interest. 105 Wn.2d at 789. The first pathway is to show that the defendant violated a statute containing a “specific legislative declaration of public interest.” Id. at 791. If so, the act per se affects the public interest. Id. The second is to identify the nature of the alleged deceptive or unfair transaction as commercial or private and apply the appropriate factors. Id. at 789-90. To determine whether a deceptive or unfair act arising from a private transaction satisfies the public interest element, a court considers (1) whether the defendant committed the alleged act in the course of its business; (2) whether the defendant advertised to the public in general; (3) whether the defendant actively solicited the plaintiff, indicating potential solicitation of others; and (4) whether the plaintiff and defendant occupied unequal bargaining positions. Id. at 790-91. Here, the homeowners fail to show that the collection of an unauthorized special assessment and maintenance fees satisfies the public interest factors 10 No. 87954-5-I/11 under Hangman Ridge. While MJ collected the special assessment and maintenance fees in the course of business, the homeowners do not show that 18 Paradise advertised to the public in general, actively solicited the homeowners, or enjoyed an unequal bargaining position with the homeowners. Still, the homeowners argue that Hangman Ridge “is no longer good authority [to determine] the public interest element” under the CPA. According to the homeowners, the legislature abrogated that portion of Hangman Ridge in 2009 when it enacted RCW 19.86.093, and it is “long past time” for this court to clarify that RCW 19.86.093 is the sole means to determine whether a deceptive or unfair act affects the public interest. We disagree. We interpret statutes de novo. HomeStreet, Inc. v. Dep’t of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009). When interpreting a statute, we first look to its plain language to determine the legislature’s intent. Id. We assume the legislature means exactly what it says and apply the statute as written. Id. at 452. And we assume the legislature is aware of the common law when it passes a bill. Antio, LLC v. Dep’t of Revenue, 3 Wn.3d 882, 893, 557 P.3d 672 (2024). To show that a statute has abrogated common law, there must be clear evidence of the legislature’s intent to deviate from it. State v. Kurtz, 178 Wn.2d 466, 476- 477, 309 P.3d 472 (2013). Under RCW 19.86.093, a claimant “may” establish that an otherwise private act or practice is injurious to the public interest because it: (1) Violates a statute that incorporates this chapter; (2) Violates a statute that contains a specific legislative declaration of public interest impact; or 11 No. 87954-5-I/12 (3)(a) Injured other persons; (b) had the capacity to injure other persons; or (c) has the capacity to injure other persons. The use of “may” in a statute is generally permissive and confers discretion. Nat’l Elec. Contractors Ass’n, Cascade Ch. v. Riveland, 138 Wn.2d 9, 28, 978 P.2d 481 (1999). So, the plain language of RCW 19.86.093 affords claimants the discretion to show that a deceptive or unfair act affects the public interest under RCW 19.86.093. But the language does not provide that the statute is the sole means to satisfy the public interest prong of the CPA. Indeed, we presume that the legislature knew of the Hangman Ridge factors at the time it enacted the statute. See Antio, 3 Wn.3d at 893. And, still, the legislature chose to use permissive rather than mandatory language in its application. The homeowners argue that the legislative history “confirms that [RCW 19.86.093] was intended to change the test for the public interest element.” They point out that the legislature enacted the statute, in part, as a response to criticism that the Hangman Ridge factors were too burdensome for private plaintiffs. See S.B. REP., S.B. 5531, 61st Leg., Reg. Sess. (Wash. 2009); H.B. REP., SUBSTITUTE S.B. 5531, 61st Leg., Reg. Sess. (Wash. 2009). And they highlight public testimony that the statute would simplify, streamline, and make the public interest test “very usable.” H.B. REP., SUBSTITUTE S.B. 5531, at 3. But the legislative history shows a desire to provide an alternative to the Hangman Ridge factors. Nothing in the history amounts to clear evidence of an intent to abrogate them. In any event, the homeowners fail to satisfy the elements of RCW 19.86.093. They show no evidence that 18 Paradise violated a statute that 12 No. 87954-5-I/13 incorporates the CPA or that contains a specific legislative declaration of public interest impact. See RAP 10.3(a)(6). And they offer no evidence that unlawful collection of the special assessment and maintenance fees injured persons other than the homeowners or that those acts had or have the capacity to do so. Id. We affirm the trial court’s dismissal of the homeowners’ CPA claim at summary judgment. 2. Petitions for Further Review The homeowners argue the trial court erred by denying their petitions for further relief seeking a money judgment for the special assessment and maintenance fees collected under the invalid amendments to the Master Declaration. We agree. We review a trial court’s exercise of discretion for an abuse of that discretion. State ex. rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). Under RCW 7.24.080, “[f]urther relief based on a declaratory judgment or decree may be granted whenever necessary or proper.” RCW 7.24.080 codifies “the principle that every court has inherent power to enforce its decrees and to make such orders as may be necessary to render them effective.” Ronken v. Bd. of County Comm’rs of Snohomish County, 89 Wn.2d 304, 311-12, 572 P.2d 1 (1977). Further relief can take several forms, including a judgment for money 13 No. 87954-5-I/14 damages. See United Nursing Homes, Inc. v. McNutt, 35 Wn. App. 632, 640, 669 P.2d 476 (1983). In Pacific Market International, LLC v. TCAM Core Property Fund Operating LP, we concluded that issuing a money judgment is an appropriate way to enforce rights arising from a declaratory judgment. No. 74623-5-I, slip op. at 5, (Wash. Ct. App. Feb. 6, 2017) (unpublished), https://www.courts.wa.gov/ opinions/pdf/746235.pdf.11 In that case, a landlord and tenant sought declaratory relief about whether the lease required the tenant to pay for all leased parking spaces no matter how many spaces the tenant used. Id. at 2. The trial court entered a declaratory judgment for the landlord. Id. at 3. Still, the tenant refused to pay for the spaces. Id. at 5. The landlord petitioned for further relief in the form of a money judgment, but the trial court refused to issue the judgment. Id. at 3-4. We reversed, holding that further relief was necessary and proper because “[w]ithout a corresponding money judgment to enforce [the landlord]’s rights under the declaratory judgment, the declaratory judgment would be hollow.” Id. at 13, 7. This case is like Pacific Market. Here, the court issued a declaratory judgment that MJ collected a one-time special assessment and monthly maintenance fees under invalid amendments to the Master Declaration. The ruling left 18 Paradise and MJ in possession of unlawfully collected assessments 11 “Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.” GR 14.1(c). “However, unpublished opinions of the Court of Appeals filed on or after March 1, 2013, may be cited as nonbinding authorities, if identified as such by the citing party, and may be accorded such persuasive value as the court deems appropriate.” GR 14.1(a). Pacific Market has such persuasive value. 14 No. 87954-5-I/15 and fees. The homeowners tried unsuccessfully for a year to obtain a refund of those fees. As a result, a money judgment is both necessary and proper to avoid leaving the homeowners with a hollow declaratory judgment. Still, 18 Paradise and MJ argue that further relief is inappropriate, as the homeowners did not seek a money judgment at trial, and further fact-finding would be necessary to determine offsetting obligations. They suggest that the homeowners’ petitions amount to “new money claims.” But a declaratory judgment action is by nature a request for a declaration of the parties’ rights, not a lawsuit for money damages. See RCW 7.24.020. And 18 Paradise cites no authority that the homeowners must litigate damages that may flow from a declaratory judgment to seek further relief under RCW 7.24.080. So, we assume they could find none. Donner v. Blue, 187 Wn. App. 51, 61, 347 P.3d 881 (2015). Finally, 18 Paradise’s suggestion that the damages arising from the court’s declaratory judgment amount to new money claims misses the mark. It is untenable to require the homeowners to bear the cost and burden of seeking an alternative forum to bring about the return of funds that the trial court declared MJ had unlawfully collected. We reverse the trial court’s order denying the homeowners petitions for further relief and remand for the trial court to issue a money judgment. 3. Attorney Fees The homeowners request attorney fees under RCW 19.86.090 “[i]f the Court reverses the dismissal of the CPA claim.” Because we affirm dismissal of 15 No. 87954-5-I/16 the CPA claim, the homeowners are not entitled to attorney fees under RCW 19.86.090. Both parties request attorney fees under section 8.3 of the Master Declaration. That section provides for an award of “reasonable attorney’s fees incurred by the prevailing party” in a suit for violating any condition, covenant, or restriction. A contractual provision for an award of attorney fees supports an award of fees on appeal under RAP 18.1. W. Coast Stationary Eng’rs Welfare Fund v. City of Kennewick, 39 Wn. App. 466, 477, 694 P.2d 1101 (1985). Because both parties have partially prevailed on appeal, we decline to award attorney fees to either. We affirm the trial court’s dismissal of the homeowners’ CPA claim, reverse the trial court’s denial of their petitions for further relief, and remand for the court to issue a judgment for money damages. We decline to award attorney fees to either party. WE CONCUR: 16