FILED
DECEMBER 6, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
NOEL MOON, a single woman, ) No. 33614-0-111
)
Plaintiff, )
)
DERALD HAUCK, a single man, )
)
Appellant, )
)
V. ) UNPUBLISHED OPINION
)
WILLIAM BARR and DIANA BARR, )
husband and wife and their marital )
community; JEANINE BURNS and )
JOHN DOE BURNS, wife and husband )
and their marital community; and SOLEIL )
REAL ESTATE OF SPOKANE, LLC., a )
Washington limited liability corporation, )
)
Respondents. )
LAWRENCE-BERREY, A.CJ. - House purchaser Derald Hauck appeals the
summary judgment dismissal of his claims against house sellers William Barr and Diana
Barr, their real estate agent\daughter Jeanine Bums, and her employer Soleil Real Estate
of Spokane LLC (Soleil). The claims arose after Mr. Hauck's daughter, Noel .Moon,
discovered old animal feces and urine under newly installed carpet.
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Moon v. Barr
Circumstantial evidence supports Mr. Hauck's claim that Mr. Barr knew of and
fraudulently concealed the animal feces and urine. Circumstantial evidence also supports
Mr. Hauck's claim that Ms. Bums knew of and failed to disclose the concealed problem.
Further, a question of fact is presented as to whether Mr. Hauck, through his daughter,
made sufficient inquiry about the animal smell before he purchased the house.
We conclude the trial court erred when it summarily dismissed Mr. Hauck's
fraudulent concealment and Consumer Protection Act (CPA), chapter 19.86 RCW, claims
against the defendants. But we conclude the trial court did not err when it summarily
dismissed Mr. Hauck's breach of contract claim against the Barrs and his negligent
misrepresentation claims against the defendants. We therefore reverse in part and affirm
in part.
FACTS
Because the trial court dismissed this case on summary judgment, we present the
facts and all reasonable inferences in the light most favorable to Mr. Hauck, the
nonmoving party.
In 1996, the Barrs bought the subject house. The Barrs rented the house to one set
of tenants from 1996 to around 2010. Neighbors of the renters said the renters had pets,
and for several years allowed their pets to urinate and defecate throughout the house.
One of the neighbors said she would wear a different pair of shoes when she visited the
renters so she would not track animal urine or feces back into her own house. She said
her feet would actually sink in the floor due to the amount of urine and feces.
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Mr. Barr visited the house once or twice a year when the renters needed repairs.
He was concerned about the condition of the house, and asked the renters to clean the
place up. He claims he never saw or smelled any animal feces or urine in the house.
After the renters moved out in 2010, Mr. Barr went into the house and determined
it was a mess. There were holes in the wall, tears in the vinyl, and the carpets needed to
be replaced. Mr. Barr did a lot of the work himself. He bought new carpet and hired
carpet layers. He was in and out of the house after the layers removed the old carpet and
padding and before they installed the new carpet.
Mr. Barr's daughter, Ms. Burns, was a real estate agent for Soleil. Mr. Barr asked
her to sell the house. Ms. Burns did not help prepare the house for sale. When deposed,
she said she went into the house only once while it was under repair. She noticed tarps
on the floor. She was inside for about two minutes, handed her father his lunch, and left.
The next time she saw the house it was "picture ready," and she took pictures of it to list.
Clerk's Papers (CP) at 397. She claims she never noticed any animal smells in the house.
Ms. Burns listed the house in January 2012. The house was on the market for
about 12 months. During this time, Ms. Burns held two open houses for brokers only.
During one of the two open houses, one broker and one lender told her "they could smell
animal." CP at 402. The house was shown about 20 times to potential purchasers.
Mr. Hauck became interested in buying the house for his daughter, Ms. Moon,
who lived in Montana. Ms. Moon wanted to move to Spokane so her disabled daughter
could be closer to health care facilities in Spokane. Ms. Moon, not her dad,
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communicated with her dad's real estate agent and with Ms. Burns. This was because the
house was intended for her use, her dad's hearing was poor, and her dad had poor
telephone reception where he lived.
On October 9, 2012, Mr. Hauck entered into a purchase and sale agreement to
purchase the property. The purchase and sale agreement listed Ms. Burns as the listing
agent, and Soleil as the listing broker. The agreement also contained an inspection
addendum, which conditioned the agreement "on Buyer's subjective satisfaction with
inspections of the Property .... " CP at 240.
On October 18, 2012, Mr. Hauck had the property inspected. The property
inspection report noted "[a] very strong pet urine smell ... in the home. This smell
may be difficult to remove." CP at 23. Another comment noted that cats had accessed
the crawl space under the home and used the dirt floor as a litter box. As the sellers'
agent, Ms. Bums never received a copy of the home inspection report.
A few days after the inspection, Ms. Moon discussed the entire inspection report
with the inspector for over an hour. Among other concerns, Ms. Moon was concerned
about the urine smell because she never smelled it. The inspector told her he had a
sensitive nose to dogs and cats. The inspector said the smell could be from cats using the
crawl space as a litter box. The inspector also said the smell could be on the painted
walls or trapped in the carpet itself from pets previously in the home.
Ms. Moon and the inspector discussed the costs to remove the smell if the smell
was in the carpet. The inspector suggested Ms. Moon find out the type and quality of
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wood that was under the carpet so she could have an idea of what it would cost to refinish
the floor if she decided to remove the carpet.
Ms. Moon telephoned Ms. Bums to discuss the inspection report. Ms. Moon
discussed the urine smell the inspector noticed, and recapped the discussions she had with
the inspector. Ms. Burns claimed she did not notice a urine smell and had not seen any
pet stains. Ms. Moon said she was considering removing all of the carpet or repainting
the walls. Ms. Moon asked during this call, and later in a different conversation, what
kind of wood was under the carpet. In the later conversation, Ms. Burns said the Barrs
did not remember.
Neither Mr. Hauck nor his daughter ever spoke with the Barrs prior to the sale of
the house. Almost all discussions were between Ms. Moon and Ms. Burns. This was
because Ms. Burns "made it clear that she was the only source of communication to her
clients." CP at 427.
On November 5, 2012, Ms. Moon called Ms. Burns and explained she had
switched lenders and needed a new purchase and sale agreement. On November 10,
2012, the parties entered into a second agreement. Mr. Hauck's agent asked Mr. Hauck
to waive the inspection for purposes of the second agreement. Mr. Hauck signed the
waiver, agreeing that
Buyer has been advised to obtain a building ... inspection, and to condition
the closing of this Agreement on the results of such inspections, but Buyer
elects to waive the right and buy the Property in its present condition.
Buyer acknowledges that the decision to waive Buyer's inspection options
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was based on Buyer's personal inspection and Buyer has not relied on
representations by Seller, Listing Broker or Selling Broker.
CP at 75.
This second agreement included a seller disclosure statement. In that statement,
the Barrs did not disclose the existence of animal feces and urine under the new carpet.
They verified, other than those defects disclosed, there were no "other existing material
defects affecting the property that a prospective buyer should know about." CP at 81.
The disclosure statement further provided:
A. Buyer has a duty to pay diligent attention to any material
defects that are known to Buyer or can be known to Buyer by utilizing
diligent attention and observation.
B. The disclosures set forth in this statement and in any
amendments to this statement are made only by the Seller and not by any
real estate licensee or other party.
C. Buyer acknowledges that, pursuant to RCW 64.06.050(2),
real estate licensees are not liable for inaccurate information provided by
Seller, except to the extent that the real estate licensees know of such
inaccurate information.
CP at 81.
Ms. Moon visited the house at least two times before closing. Each time, she
noticed air fresheners in the house. Mr. Hauck and the Barrs signed closing documents in
mid-December 2012.
Before moving into the house, Ms. Moon told Ms. Bums she was going to rent a
shampooer to clean the carpets. Ms. Bums said that, would not be necessary because the
carpets were brand new. Ms. Bums later told Ms. Moon she had been in the house prior
to it being cleaned and described the house as "'trashed.'" CP at 426.
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In January 2013, Ms. Moon and Mr. Hauck obtained the keys from Ms. Bums and
went through the house with her. Ms. Moon noticed multiple air fresheners inside the
home. She described them as "overpowering" and said they "burned [her] nasal
passages." CP at 428. Ms. Bums even sprayed air freshener as they walked through the
house. Ms. Bums told Ms. Moon she always sprayed houses that had been sitting closed.
Before leaving that day, Ms. Moon turned on the heat.
Ms. Moon next went into the house in February 2013. The heating of the house
caused the animal smell to be very noticeable. She determined the smell did not emanate
from under the house. Ms. Moon then pulled up the new carpets and saw old animal
feces and urine.
Mr. Hauck and Ms. Moon filed suit against the Barrs, Ms. Bums, and Soleil. They
asserted fraudulent concealment, negligent misrepresentation, and CPA claims against all
defendants. Mr. Hauck also asserted breach of the purchase and sale agreement against
the Barrs.
After discovery, the defendants moved for summary judgment. The trial court
granted the motion. As to Ms. Moon, the trial court determined she did not have legal or
equitable standing because she was never a party to the purchase and sale agreement. As
to Mr. Hauck, the trial court determined he failed to make a reasonable inquiry of the
sellers concerning the animal smell made known to him by the inspection report.
Only Mr. Hauck appeals.
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ANALYSIS
This court reviews a summary judgment order de novo, engaging in the same
inquiry as the trial court. Kim v. Lakeside Adult Family Home, 185 Wn.2d 532,547,374
P.3d 121 (2016). Summary judgment is appropriate only 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 of law." CR 56(c ). A material fact is one the outcome
of the litigation depends on. In re Estate of Black, 153 Wn.2d 152, 160, 102 P .3d 796
(2004). This court views all facts and reasonable inferences from those facts in the light
most favorable to the nonmoving party. Kim, 185 Wn.2d at 54 7. Summary judgment is
appropriate only if reasonable persons could reach but one conclusion from all the
evidence. Id.
When reviewing a civil case in which the standard of proof is clear, cogent, and
convincing evidence, this court "' must view the evidence presented through the prism of
the substantive evidentiary burden."' Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d
807 (2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986)); see also Gossett v. Farmers Ins. Co. of Wash., 133 Wn.2d 954,
973, 948 P.2d 1264 (1997). The burden of proof for negligent misrepresentation and
fraudulent concealment claims is clear, cogent, and convincing evidence. Barish v.
Russell, 155 Wn. App. 892, 905 n.7, 230 P.3d 646 (2010); Stieneke v. Russi, 145 Wn.
App. 544, 561, 190 P.3d 60 (2008). Thus, this court must determine whether, viewing
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the evidence in the light most favorable to Mr. Hauck, a rational trier of fact could find
that he supported his fraudulent concealment and negligent misrepresentation claims with
clear, cogent, and convincing evidence. See Woody, 146 Wn. App. at 22.
A. FRAUDULENT CONCEALMENT
Mr. Hauck argues the trial court erred in dismissing his fraudulent concealment
claim. A buyer of residential property bringing a claim for fraudulent concealment must
establish ( 1) the residential dwelling has a concealed defect; (2) the seller has knowledge
of the defect; (3) the defect is dangerous to the purchaser's property, health, or life;
(4) the defect is unknown to the purchaser; and ( 5) the defect would not be disclosed by a
careful, reasonable inspection by the purchaser. Alejandre v. Bull, 159 Wn.2d 674,689,
153 P.3d 864 (2007).
1. Concealed defect
Here, Ms. Moon found pet feces and urine under the new carpet. The pet feces
and urine were thus concealed.
2. Sellers' and Ms. Burns 's knowledge
Mr. Barr was inside the house during and after the time the old carpet and pad
were removed and the new carpet was installed. Construing the facts and all reasonable
inferences in the light most favorable to Mr. Hauck, a rational trier of fact could find by
clear and convincing evidence that Mr. Barr knew that pet feces and urine were under the
new carpet. Mr. Barr might have known this in one of at least three ways. First, he may
have seen the carpet installers lay the carpet over the floor without the floors being first
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adequately cleaned. Second, he may have seen the condition of the floors and known that
the numerous years of pet urine and feces required the floorboards to be removed and
replaced to adequately remedy the condition. Third, he may have smelled the odor after
the new carpet was installed and have known the source of the smell was animal feces
and urine still under the new carpet. Although Mr. Barr denies he ever smelled animal
feces or urine, this is a fact peculiarly within his knowledge, and cross-examination
should be allowed so a jury can determine the credibility of his denial. See Arnold v.
Saberhagen Holdings, Inc., 157 Wn. App. 649, 661-62, 240 PJd 162 (2010); Riley v.
Andres, 107 Wn. App. 391, 395, 27 P.3d 618 (2001).
Ms. Bums and Soleil argue they have no liability because Ms. Bums had no
knowledge of the animal feces and urine under the carpet. We agree there is no direct
evidence that Ms. Bums knew of the animal feces and urine. But we disagree that there
is no circumstantial evidence. Circumstantial evidence may support a finding of direct
knowledge. Waite v. Whatcom County, 54 Wn. App. 682, 687, 775 P.2d 967 (1989).
Construing the evidence and all reasonable inferences in the light most favorable
to Mr. Hauck: (1) Ms. Bums described the house as "trashed," evidencing that she saw it
early, before her father had new carpet installed; (2) the years of excessive animal feces
and urine throughout the house would have produced a discemable smell, giving her
knowledge that pets had defecated and urinated on the floors and the old carpet; and
(3) as evidenced by her consistent and heavy use of air fresheners, she knew the
floorboards were not sufficiently cleaned prior to installation of the new carpet.
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Ms. Bums, similar to her father, denies ever smelling animal feces and urine. But
a trier of fact is not required to believe Ms. Bums, who may have seen and smelled the
house when it was in a trashed condition. Courts are reluctant to grant summary
judgment when material facts are particularly within the knowledge of the moving party.
Arnold, 157 Wn. App. at 661-62; Riley, 107 Wn. App. at 395. Here, there is
circumstantial evidence Ms. Bums knew the floorboards were not adequately cleaned of
animal feces and urine prior to being concealed by the new carpet. Although she disputes
this knowledge, a trier of fact should have the opportunity to consider her denial under
cross-examination to determine whether it believes her denial or the contradictory
circumstantial evidence.
3. Dangerous to purchaser's health
Mr. Hauck did not purchase the house for his own use-he purchased it for his
daughter's use. Ms. Moon made clear to Ms. Bums that she was the intended occupant
of the house. The defendants do not assert we should limit this element to Mr. Hauck's
health. Because Ms. Bums knew Ms. Moon would be living in the house, we extend our
inquiry to whether the defect is dangerous to Ms. Moon's health.
Mr. Hauck, through an industrial hygienist, presented evidence that would allow a
rational trier of fact to find by clear and convincing evidence that the presence of old
animal feces and urine likely cause conditions that would be dangerous to a person's
health.
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4. Defect not known to purchaser
The defect was not the smell. A smell is not dangerous to a person's health. The
defect, instead, was the old feces and urine under the carpets. There is no evidence that
Mr. Hauck or his daughter knew, before Mr. Hauck purchased the house, that there were
old animal feces and urine under the new carpets.
5. Defect not disclosed by careful, reasonable inspection
Once a buyer discovers evidence of a defect, the buyer is on notice and has a duty
to make further inquiries. Douglas v. Visser, 173 Wn. App. 823, 832, 295 P.3d 800
(2013). Here, the home inspector smelled animal feces and urine, and he disclosed this to
Ms. Moon. Notice to Ms. Moon was notice to Mr. Hauck.
The evidence is undisputed that Ms. Moon was her father's agent for purposes of
purchasing the house. She acted as his agent because the house was intended for her use,
her father had difficulty hearing on the telephone, and her father's telephone reception
was poor. The law required Mr. Hauck, directly or through his daughter, to make further
inquiries about the animal smell.
The question presented here is whether Ms. Moon's discussion with Ms. Bums
concerning the inspection report failed, as a matter oflaw, to fulfill this duty. Summary
judgment is only proper if the question can be answered as a matter of law. To answer
this question, we tum to cases that have discussed this duty to inquire.
In Alejandre, the home buyers had the septic system pumped before they
purchased the house. Alejandre, 159 Wn.2d at 679. The septic company employee who
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pumped the tank noted on the bill that he was unable to inspect the back baffle, and added
there was "' [n]o obvious malfunction of the system at time of work done.'" Id.
(alteration in original). After the purchase, the drainfield failed. Id. at 680. The failure
was due to the back baffle missing, thus allowing sludge to enter the drainfield. Id. The
buyers brought suit, alleging negligent misrepresentation and fraudulent concealment. Id.
The trial court granted the seller's motion to dismiss at the end of the buyers' case. Id.
The Supreme Court affirmed the dismissal of the buyers' fraudulent concealment claim.
Id. at 691. The Supreme Court noted that trial testimony established an inspection of the
back baffle would have been simple, and a careful examination would have led to
discovery of the missing baffle. Id. at 690. Alejandre thus requires a house purchaser to
make a reasonable inspection.
In Dalarna, an apartment building had chronic water leaks. Puget Sound Serv.
Corp. v. Dalarna Mgmt. Corp., 51 Wn. App. 209,210, 752 P.2d 1353 (1988). Because
of these leaks, the owner decided to sell the building. Id. at 211. The seller had several
conversations with the buyer, but never discussed defects or maintenance problems. Id.
The buyer had the building inspected. Id. The inspection revealed stains, cracked
plaster, and loose tiles. Id. The report stated, "' These leaks are not serious but should be
controlled by additional caulking outside and repainting and/or replastering inside.'" Id
The buyer purchased the building without making any further inquiries. Id. at 212.
After spending $118,000 attempting to fix the leaks, the buyer sued for
constructive fraud, alleging that the seller failed to disclose "' substantial, chronic, and
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unresolved water leakage problems.'" Id. The buyer agreed that it discovered evidence
of water leaks, but argued the true defect was the extreme, chronic nature of the leaks.
Id. at 214. The buyer characterized the extent of the problem as a separate defect. Id.
The Dalarna court held that when "an actual inspection demonstrates some evidence of
water penetration, the buyer must make inquiries of the seller." Id. at 215. The court
reasoned that the buyer knew there was a defect, but did not inquire about the defect or
establish that inquiries would have been fruitless. Id. The court further reasoned that the
extent of the damage itself was not a separate defect, and it was no defense that the defect
was worse than the buyer anticipated. Id. at 214-15. Dalarna thus requires a buyer with
notice of a defect to make some inquiry of the seller concerning the defect.
In Douglas, the buyers learned through their home inspector of an area of wood
rot and decay near the roof line. Douglas, 173 Wn. App. at 826. The home buyers failed
to make any inquiries of the seller concerning possible wood rot. Id. After the purchase,
the buyers learned that the wood rot was much more extensive. Id. at 827. The trial
court heard the evidence and entered a verdict in favor of the buyers. Id. at 829. In
reversing the trial court, we noted:
The Douglases ... were on notice of the defect and had a duty to make
further inquiries. The Douglases argue that "they had no idea that 50 to
70% of the sill plate and rim joist were destroyed" and that the area of rot
that [their inspector] discovered was not unusual. That, however, is the
precise argument we rejected in Dalarna. Once [buyers] discover[]
evidence of a defect, they are on notice and have a duty to make further
inquiries. They cannot succeed when the extent of the defect is greater than
anticipated, even when it is magnitudes greater.
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Id. at 832. Douglas thus requires a buyer with notice of a defect to make some inquiry of
the seller concerning the defect.
This case is dissimilar to Dalarna and Douglas. There, the buyers discovered
evidence of defects and failed to make any inquiry. Here, Ms. Moon discussed with Ms.
Bums the urine smell the inspector noticed and recapped the discussions she had with the
inspector. Because Ms. Bums was the Barrs' agent, and did not permit Mr. Hauck or Ms.
Moon to talk directly with them, inquiries made to her were inquiries made to the Barrs.
The defendants imply that Ms. Moon was required to pointedly ask Ms. Bums to
disclose the location of the smell. But the defendants cite no case that requires such an
inquiry. Rather, the law requires the buyer to make further inquiry concerning what he or
she knows. Here, Ms. Moon learned that there was an animal smell emanating from
somewhere. She discussed what she knew with Ms. Bums. By discussing what she
knew with Ms. Bums, Ms. Bums was required to disclose her knowledge of the defect if
she knew, or to discuss Ms. Moon's comments with Mr. Barr so he could disclose his
knowledge of the defect. It is the seller's knowledge that a buyer is unaware of a
concealed material defect that gives rise to the seller's duty to speak. Alejandre, 159
Wn.2d at 689.
This case is also dissimilar to Alejandre. There, the buyers did not conduct a
careful, reasonable inspection. Here, Mr. Hauck hired a professional inspector. Even the
professional inspector failed to find animal feces and urine under the carpet. Whether a
careful, reasonable inspection requires a potential buyer to pull up newly installed carpet
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to look for animal feces and urine is questionable, and surely cannot be answered as a
matter of law against the buyer. Here, a rational trier of fact could find by clear and
convincing evidence that Mr. Hauck, through Ms. Moon, conducted a careful and
reasonable inspection.
B. NEGLIGENT MISREPRESENTATION CLAIM AGAINST MS. BURNS AND SOLEIL
Mr. Hauck argues the trial court erred when it dismissed his negligent
misrepresentation claim against Ms. Bums and Soleil. 1 More particularly, he argues Ms.
Bums failed to uphold her statutory duties under RCW 18.86.030(1) and chapter 64.06
RCW.
RCW 18.86.030(1) defines duties owed by a real estate broker. A common law
tort cause of action is the vehicle through which a real estate buyer may recover damages
against an agent or a broker. Jackowski v. Borchelt, 174 Wn.2d 720, 735, 278 P.3d 1100
(2012). RCW 18.86.030(1) clarifies that the broker's duties are owed "to all parties to
whom the broker renders real estate brokerage services." Here, neither Ms. Burns nor
Soleil rendered real estate brokerage services to Mr. Hauck. Mr. Hauck hired his own
real estate agent. Thus, RCW 18.86.030(1) does not support Mr. Hauck's cause of action
against Ms. Burns or Soleil.
Chapter 64.06 RCW sets forth various required seller disclosures pertaining to
different types of real estate sales. That chapter also provides buyers with limited rights
1
Mr. Hauck impliedly concedes the trial court correctly applied the economic loss
rule when it dismissed his negligent misrepresentation claim against the Barrs. His
concession is correct. See Alejandre, 159 Wn.2d at 689.
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and remedies. But because Mr. Hauck did not argue to the trial court that Ms. Bums and
Soleil were liable to him under chapter 64.06 RCW, we do not consider his new
argument on appeal. See RAP 2.5(a).
We conclude the trial court did not err when it dismissed Mr. Hauck's negligent
misrepresentations claims against Ms. Bums and Soleil.
C. CPA CLAIMS
Mr. Hauck argues the trial court erred when it dismissed his CPA claim against the
Barrs, Ms. Bums, and Soleil. "A violation of the [CPA] exists when there is (1) an unfair
or deceptive act or practice (2) occurring in trade or commerce (3) with a public interest
impact (4) that proximately causes ( 5) injury to a plaintiff in his or her business or
property." Douglas, 173 Wn. App. at 834.
1. CPA liability against the Barrs
The Barrs argue Mr. Hauck cannot establish there was an unfair or deceptive act
or practice. We disagree. We must consider the evidence and all reasonable inferences
most favorably to Mr. Hauck. Construing the evidence in this manner, Mr. Barr knew the
floorboards were badly damaged by animal feces and urine and concealed the damage
with new carpets.
The Barrs appear to argue, alternatively, that nothing they did caused Mr. Hauck's
harm. They argue Mr. Hauck's failure to inquire and failure to do a careful, reasonable
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inspection were the causes of Mr. Hauck's damages. But as we discussed previously,
such arguments raise genuine issues of material fact best left to the trier of fact. 2
2. CPA liability against Ms. Burns and Soleil
a. Unfair or deceptive act or practice
Ms. Bums and Soleil first argue they did not commit any unfair or deceptive act or
practice because Ms. Bums had no independent knowledge of the animal feces and urine
under the carpet. We have already addressed this argument and have determined that a
trier of fact could find she gained such knowledge when she first visited the house and
was later aware of the unabated smell. Again, a trier of fact should weigh her denial
under cross-examination.
b. Public interest
Ms. Bums and Soleil next argue the public interest element of Mr. Hauck's CPA
claim is not met. We disagree.
In Svendsen v. Stock, 143 Wn.2d 546, 23 P.3d 455 (2001), a real estate agent
assisting the seller of residential property had actual knowledge that the property flooded
whenever a nearby storm drain became clogged with debris during heavy rains. Id. at
552. The real estate agent's knowledge arose independently of her assisting the seller
completing the seller disclosure statement. Id. When the seller and agent discussed how
2
The Barrs, both at summary judgment and on appeal, challenged Mr. Hauck' s
CPA claim only on the basis that he could not establish an unfair or deceptive act or
practice. Although we reverse the dismissal of Mr. Hauck's CPA claim against the Barrs,
the reversal is limited to the sole issue raised by the Barrs.
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to complete the disclosure statement, the agent advised the seller not to disclose the
problem because the cause-debris in the storm drain-had been (temporarily) fixed. Id.
at 551. The agent added, there was no obligation to disclose a history of flooding
because it "' is not happening right now.' " Id. The seller therefore did not disclose the
flooding problem. Id. After closing, the buyers suffered substantial property damage as
a result of water flowing on their property when the nearby storm drain became clogged.
Id.
A jury returned a verdict in favor of the buyers and against the real estate agent
and her employer for fraudulent concealment and violation of the CPA. Id. at 552. The
jury apportioned 95 percent of the fault to the real estate agent and her employer, and the
other 5 percent of fault to the seller. Id. We partially affirmed, determining that
substantial evidence supported fraudulent concealment. Id. We reversed the CPA claim.
Id. In reversing, we noted that RCW 64.06.060's language explicitly stated "'the
practices covered by this chapter are not matters vitally affecting the public interest for
the purpose of applying the [CPA]."' Id. at 553-54 (quoting RCW 64.06.060).
The Svendsen court granted the buyer's petition for review and reversed our
dismissal of the CPA claim. Id. at 552, 560. In reversing, the Svendsen court noted three
things. First, RCW 64.06.070 did not extinguish a buyer's common law or statutory
cause of action. Id. at 556. Second, Washington courts had, prior to the enactment of
chapter 64.06 RCW, repeatedly held that real estate agents are subject to CPA liability for
not disclosing known material defects. Id. And third, the real estate agent was liable
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under the CPA because she had knowledge of the flooding problem independent of her
assisting the seller in completing the disclosure statement. Id. at 557.
In analyzing the public interest requirement of a CPA claim, the Svendsen court
noted the four factors that a trier of fact must weigh:
(1) [W]hether the acts were committed in the course of defendant's
business; (2) whether the defendants advertised to the public; (3) whether
the defendant actively solicited the plaintiff, indicating other potential
solicitation of others; and (4) whether the parties occupied unequal
bargaining positions.
Id. at 559. The court explained that none of the four factors are dispositive nor is it
necessary that all four factors be present. Id. The court noted that the real estate agent's
concealment was within the course of her business, and her employer advertised to the
public, but there was no unequal bargaining position. Id. The Svendsen court held that
such evidence was sufficient to establish the public interest requirement of the CPA. Id.
We similarly hold that the facts presented by Mr. Hauck are sufficient to satisfy
the public interest requirement of his CPA claim. Construing the evidence and all
reasonable inferences in his favor, Ms. Bums's concealment was within the course of her
business, and Soleil advertised the property to the public when it listed the property for
sale. Such solicitation resulted in at least 20 potential purchasers, including Mr. Hauck,
learning of the property. We conclude the trial court erred in summarily dismissing Mr.
Hauck's CPA claim against Ms. Bums and Soleil.
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No. 33614-0-III
Moon v. Barr
D. BREACH OF CONTRACT CLAIM
Mr. Hauck argues he has shown a genuine issue of material fact as to each of his
other claims, and therefore his breach of contract claim survives. He fails to explain what
contract clause the Barrs supposedly breached. We will not consider such a vague
argument on appeal. See RAP 10.3(a)(6) (requiring arguments to contain citations to
legal authority and references to relevant parts of the record); Marin v. King County, 194
Wn. App. 795, 820, 378 P.3d 203 (2016) (finding that appellant's argument was too
vague to permit review).
E. ATTORNEY FEES AND COSTS ON APPEAL
The Barrs request attorney fees on appeal pursuant to a provision in the purchase
and sale agreement. The provision provides, "if Buyer or Seller institutes suit against the
other concerning this Agreement the prevailing party is entitled to reasonable attorneys'
fees and expenses." CP at 54. The prevailing party in a contract action shall receive
attorney fees and costs when the contract authorizes such an award. RCW 4.84.330.
Subject to their compliance with RAP 18.l(d), the Barrs are awarded their reasonable
attorney fees. However, the only basis for a fee award is successfully defending against
Mr. Hauck's breach of contract claim. For this reason, their fee award is limited to those
fees reasonably necessary in defeating the contract claim. See Hume v. Am. Disposal
Co., 124 Wn.2d 656, 672, 880 P.2d 988 (1994).
Ms. Burns and Soleil request attorney fees "pursuant to RAP 18.1 and 18.9." Br.
ofResp'ts Soleil Real Estate and Burns at 47. They fail to provide any argument in
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No. 33614-0-III
Moon v. Barr
support of their fee request. We therefore deny their request. See RAP 18.l(b); Stiles v.
Kearney, 168 Wn. App. 250,267, 277 P.3d 9 (2012) (single sentence requesting attorney
fees, without argument or citation to authority, fails to comply with mandatory
requirements of RAP 18.l(b)).
Mr. Hauck requests reasonable attorney fees pursuant to the purchase and sale
agreement. We affirm the dismissal of his contract claim. We therefore deny his request.
Because each party partially prevailed on appeal, we determine no party is entitled
to an award of statutory costs on appeal.
CONCLUSION
The trial court erred when it summarily dismissed Mr. Hauck's fraudulent
concealment and CPA claims against the defendants. The trial court correctly summarily
dismissed Mr. Hauck's breach of contract claim against the Barrs and his negligent
misrepresentation claim against the defendants. We therefore reverse in part and affirm
in part.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
22
Noel Moon v. William Barr, et ux
Combined Opinion