FILED
OCTOBER 18, 2018
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
BAKER BOYER NATIONAL BANK, )
) No. 35526-8-III
Respondent, )
)
v. )
)
JAMES PATTERSON FOUST, JR., ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — The trial court granted summary judgment in favor of Baker
Boyer National Bank and entered judgment against James Foust Jr. for the more than $1
million owed by his limited liability company—a debt that Mr. Foust had personally
guaranteed. Mr. Foust appeals, contending the court erred in summarily dismissing his
counterclaims alleging fraud in the inducement and negligent misrepresentation, and in
denying reconsideration. We find no error or abuse of discretion and affirm.
FACTS AND PROCEDURAL BACKGROUND
This case arises out of a failed investment opportunity originally conceived in
2012 by Greenflex Housing, LLC, (Greenflex1) during an oil boom in North Dakota’s
1
For simplicity, we refer to Greenflex Housing, LLC as “Greenflex.” Other
Greenflex entities exist, but we have no occasion to refer to any of them in this opinion.
No. 35526-8-III
Baker Boyer Nat’l Bank v. Foust
Bakken oil field. The oil boom created a housing need that a Washington resident, John
Eakin, and several friends concluded could be profitably addressed by delivering
Greenflex modular homes to locations where oil field housing was needed. Mr. Eakin,
who served as Greenflex’s chief executive officer at relevant times, offered the following
explanation of its business plan:
Greenflex Housing LLC is a company we formed to provide portable
worker housing for construction, oil, gas, pipeline, and virtually anyone
who has a need for housing in hard to reach areas. Our company basically
has “unit owners” who purchase Greenflex homes from the Greenflex
factory in Salem, Oregon. After looking at the information on how we
build those homes you will understand why we exclusively use the
Greenflex brand. Super insulated concrete structures that are fire proof,
waterproof, mold proof, and virtually indestructible are the perfect solution
for rental worker housing. The fact that they are portable makes for ease of
placement in hard to a [sic] build areas with limited infrastructure. The
basic idea is to have several “unit Owners” who pool their homes into
Greenflex Housing, LLC so we can be a large housing provider across the
nation.
Clerk’s Papers (CP) at 110.
One of the early investors in the venture was Jason Sundseth, whose limited
liability company (LLC) purchased 30 modular homes, or “units,” with financing
provided by Baker Boyer Bank. By the spring of 2013, however, Dr. Sundseth wanted to
sell the LLC’s units, which had by then been moved to leased sites in recreational vehicle
(RV) parks in North Dakota. James Foust Jr. learned of the opportunity to purchase the
Sundseth LLC’s units from Cameron Jones, a friend of Mr. Eakin’s. Mr. Jones
introduced Mr. Foust to Dr. Sundseth, Mr. Eakin, and Greenflex’s chief financial officer.
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In September 2013, Mr. Foust, as managing member of his own LLC, JPF Enterprises
(JPF), entered into an agreement to buy the 30 units from the Sundseth LLC, contingent
on reaching financing terms with the bank. The agreement provided for a $52,150 sales
commission to Mr. Jones, to be paid by JPF.2
JPF agreed to purchase the 30 units for $1,245,000, approximately $1,000,000 of
which would be paid to the bank in order to discharge the bank’s liens. Mr. Foust had not
done business with the bank before, but began corresponding with one of its loan officers,
Chris Sentz, on or before June 4, 2013. In e-mails exchanged on that date, Mr. Foust
identified his expectations, which included that he would have a lease agreement with
Greenflex. Mr. Sentz responded with an expression of interest outlining a framework for
financing that assumed that Mr. Foust’s LLC would have a six-year contract with
Greenflex.3 Over the next four months, Mr. Foust, an experienced business owner and
operator, investigated and assessed the potential investment. The bank engaged in its
underwriting process.
2
Mr. Foust later speculated that Mr. Jones was retained by the bank to offload the
Sundseth LLC’s investment, but there is no evidence that Mr. Jones had a connection
with the bank. The fact that his commission was paid by JPF suggests that he was acting
on Mr. Foust’s behalf, not the bank’s.
3
Mr. Sentz’s communication’s stated assumption was “a negotiated ‘6 year’
contract with John Eakin,” but it is undisputed that the bank contemplated a contract with
Greenflex, presumably to be executed by Eakin as CEO. CP at 107.
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On October 17, 2013, Mr. Foust, as the managing member of JPF, executed a
$1,077,600 promissory note in favor of the bank to close its purchase of the 30 units. The
bank required, and Mr. Foust individually signed, a commercial guaranty. Among Mr.
Foust’s representations and warranties in the guaranty was his agreement “that, absent a
request for information, Lender shall have no obligation to disclose to Guarantor any
information or documents acquired by Lender in the course of its relationship with
Borrower.” CP at 12.
JPF made its last payment on the note a couple of years later, on November 2,
2015. On March 4, 2016, the bank declared JPF in default, accelerated the loan, and
demanded payment. In December 2016, it brought the action below, suing Mr. Foust
individually on his guaranty. In response to the bank’s motion for default or summary
judgment, Mr. Foust answered and counterclaimed, alleging fraudulent inducement and
negligent misrepresentation.
When deposed, Mr. Foust was unable to identify any affirmative misrepresentation
made to him by representatives of the bank, but he believed that misrepresentations might
be uncovered through discovery. He also relied for his fraud and negligent
misrepresentation claims on “sin[s] of omission.” CP at 203. This was based on his
belief that bank employees knew but failed to tell him about problems Greenflex had in
2013 with Badlands LLC, the rental manager for Greenflex’s units in North Dakota.
Badlands also turned out to be the party holding lease rights to the RV sites where the
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units were located. Badlands filed a lawsuit against Greenflex on or about July 12, 2013,
in which it reportedly obtained a temporary restraining order against Greenflex. The case
was compromised and settled, and the claims against Greenflex were dismissed four
weeks later, on August 9, 2013.
The trial court granted summary judgment in the bank’s favor. In a motion for
reconsideration, Mr. Foust for the first time argued that the bank had violated the Equal
Credit Opportunity Act, 15 U.S.C. § 1691, and sought to retract his admission in
answering the bank’s complaint that he entered into the commercial guaranty on behalf of
his marital community. The trial court denied the motion. Mr. Foust appeals.
ANALYSIS
I. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT DISMISSING MR.
FOUST’S CLAIMS
Mr. Foust argues that the trial court erred in granting summary judgment because
genuine issues of material fact exist that require trial. We review a trial court’s grant of
summary judgment de novo. Korslund v. Dyncorp Tri-Cities Servs., Inc., 156 Wn.2d
168, 177, 125 P.3d 119 (2005), overruled on other grounds by Rose v. Anderson Hay &
Grain Co., 184 Wn.2d 268, 358 P.3d 1139 (2015). Summary judgment is appropriate
when the moving party shows 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). The
nonmoving party “may not rely on speculation, argumentative assertions that unresolved
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factual issues remain, or in having its affidavits considered at face value.” Seven Gables
Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). “[A]fter the moving
party submits adequate affidavits, the nonmoving party must set forth specific facts that
sufficiently rebut the moving party’s contentions and disclose that a genuine issue as to a
material fact exists.” Id. Like the trial court, we view all demonstrated facts and
reasonable inferences in the light most favorable to the nonmoving party. Jones v.
Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002).
A. The fraudulent inducement counterclaim was properly dismissed
To prevail on a claim of fraud, the plaintiff must prove nine elements by clear,
cogent, and convincing evidence.4 Among them are that the defendant made a material
misrepresentation of existing fact. Beckendorf v. Beckendorf, 76 Wn.2d 457, 462, 457
P.2d 603 (1969). Fraud in the inducement exists when the misrepresentation is of a
matter or matters that motivate a defendant to enter into the transaction. Pedersen v.
Bibioff, 64 Wn. App. 710, 722, 828 P.2d 1113 (1992).
Mr. Foust does not rely for his claim of fraudulent inducement on a material
misrepresentation but contends, instead, that the bank failed to disclose material
4
The nine elements are (1) a representation of existing fact, (2) that is material, (3)
and false, (4) the speaker knows of its falsity, (5) intent to induce another to act, (6)
ignorance of its falsity by the listener, (7) the latter’s reliance on the truth of the
representation, (8) her right to rely on it, and (9) consequent damage. Pedersen v. Bibioff,
64 Wn. App. 710, 723 n.10, 828 P.2d 1113 (1992).
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information. “Ordinarily,” however, “the duty to disclose a material fact exists only
where there is a fiduciary relationship.” Tokarz v. Frontier Fed. Sav. & Loan Ass’n, 33
Wn. App. 456, 463-64, 656 P.2d 1089 (1982). When a duty to disclose exists, the
suppression of a material fact is tantamount to an affirmative misrepresentation. Crisman
v. Crisman, 85 Wn. App. 15, 22, 931 P.2d 163 (1997).
A bank is not generally a fiduciary of its borrowers; instead, they deal at arm’s
length. Tokarz, 33 Wn. App. at 458-59. Mr. Foust concedes that this court’s decision in
Tokarz provides a controlling legal analysis of the special circumstances in which a bank
might owe a duty of disclosure to a borrower. Br. of Appellant at 10-11. In Tokarz, the
plaintiffs contracted with a builder and contractor to construct a home, obtaining
financing through Frontier Federal Savings & Loan. Tokarz, 33 Wn. App. at 458.
Frontier had made earlier loans for homes that the contractor was building. Id. A month
after the Tokarzs’ financing was arranged, Frontier discontinued lending money to the
contractor, having learned from a routine credit report that five liens had been filed on
homes he was building. Id. When the Tokarzs had their own problems with the
contractor, ordered him off the property, and then later learned that Frontier had earlier
severed its own relationship with the contractor, they sued Frontier, alleging breach of
fiduciary duty and fraud for not disclosing the contractor’s financial problems. Id. at 458.
On appeal, this court recognized that no prior Washington case had addressed the
precise issue of whether there was a special relationship between a plaintiff borrower and
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a defendant bank giving rise to a duty to disclose another bank customer’s difficulties.
Id. at 461. In the Tokarzs’ case, this court found “none of the special circumstances
which may impose a fiduciary duty”:
There is no allegation or evidence that Frontier (1) took on any extra
services on behalf of Tokarz other than furnishing the money for
construction of a home; (2) received any greater economic benefit from the
transaction other than the normal mortgage; (3) exercised extensive control
over the construction; or (4) was asked by Tokarz if there were any lien
actions pending.
Id. at 462.
Mr. Foust argues that two important factual differences distinguish his case from
Tokarz. He claims that here, (1) the bank “required” him to contract with Greenflex, Br.
of Appellant at 11, (2) at the same time the bank was making inquiries about Greenflex’s
operations as part of the bank’s underwriting of JPF’s investment in the housing venture.
The only case he suggests recognizes these facts as additional bases for finding a duty to
disclose is Hutson v. Wenatchee Federal Savings & Loan Ass’n, 22 Wn. App. 91, 588
P.2d 1192 (1978). But Hutson predates Tokarz, and Tokarz characterizes Hutson as a
classic case of a special relationship that arose because a borrower with “less knowledge,
experience and judgment” than bank officers relied, with the bank’s knowledge, on the
bank officers’ superior understanding of the type of mortgage or credit insurance that it
was procuring on the borrower’s behalf. Tokarz, 33 Wn. App. at 460-61.
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Unlike the borrower in Hutson, Mr. Foust is an experienced businessperson. He
cannot demonstrate bank awareness that he relied on the bank to disclose information
encountered in the underwriting process because his guaranty expressly disclaimed
reliance on the bank to disclose such information. His representation and warranty that
the bank had no obligation to disclose information it acquired does not contravene public
policy, as he contends on appeal. To the contrary, it clarified the expectations of the
parties.
In opposing summary judgment, Mr. Foust did not demonstrate any other special
circumstance giving rise to a fiduciary duty of disclosure on the part of the bank. He did
not demonstrate that the bank provided services to Mr. Foust other than traditional
financing with normal underwriting procedures.
Mr. Foust argues that a fiduciary or special relationship arose because the bank
gained a greater-than-usual economic benefit when his purchase of the units spared the
bank the need to foreclose on its loan to the Sundseth LLC. To begin with, for a greater-
than-usual economic benefit to give rise to a fiduciary duty, it must be a benefit that the
parties recognize and that they know (or should know) transforms their relationship to
one of unusual trust and confidence. This is clear from the Washington case law on
which Tokarz relied in concluding that a greater-than-usual economic benefit can give
rise to fiduciary duties. There is no evidence that Mr. Foust and bank representatives had
a common understanding during loan negotiations that the bank was receiving a greater-
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No. 35526-8-III
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than-usual economic benefit from the loan to JPF, so there was nothing to transform their
relationship into one of unusual trust and confidence.
Mr. Foust provides no admissible evidence that the bank did benefit economically
when JPF stepped into the shoes of the Sundseth LLC. The evidence on which Mr. Foust
relies for this argument is at best double hearsay: he points to unsworn electronic mail
from Mr. Eakin in which Mr. Eakin recounts information about Dr. Sundseth refusing to
make payments and being nine days away from delinquency. This is information that
Mr. Eakin might have learned from Dr. Sundseth or that he might have learned from
someone further removed from the facts. Mr. Foust presents no admissible evidence that
the Sundseth LLC would have discontinued making payments and no evidence,
admissible or inadmissible, that Dr. Sundseth and his LLC were weaker financially than
JPF and Mr. Foust.
Mr. Foust’s most vigorous contention is that the bank imposed a “requirement”
that JPF enter into a lease and management agreement with Greenflex, thereby allegedly
exercising extensive control over JPF’s operations. Br. of Appellant at 5. Mr. Foust’s
evidence shows only that after he sent an e-mail to Mr. Sentz on the early afternoon of
June 4, 2013, expressing his “[e]xpectation[ ]” that he would enter into a lease of the
purchased units to Greenflex, the bank made Mr. Foust’s expected lease a requirement of
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the loan.5 CP at 108-09. It is normal for commercial lenders extending substantial credit
to satisfy themselves, sometimes through loan conditions or requirements, that a
borrower’s business will be operated competently during the loan term. Mr. Foust’s own
deposition testimony makes clear that this is what the bank’s “requirement” was all
about. Asked about the discussion with Mr. Sentz about the bank’s requirement for a
lease of the units to Greenflex, Mr. Foust testified;
A He said that—that the GreenFLEX Housing had a great deal
of experience in managing these things, and it was a prerequisite to, you
know, pursuing business with Baker Boyer Bank, and probably because
that was a board of directors—or whoever approved that line of business—
stated that was protection, I guess, on, you know, somebody that was
inexperienced coming in.
Q Explain that. Who was inexperienced?
A I was inexperienced. I had no experience in managing units
in an oil field in North Dakota. This company did. And it made sense.
Q It made sense to align the borrower with GreenFLEX
Housing?
A Yes.
Q Did you ever tell the bank you didn’t want to have to lease the
units you were going to buy to GreenFLEX Housing?
A No. That was—please understand, that wasn’t an option that
was even open, that that was a requirement by Baker Boyer Bank.
CP at 172-73.
5
The lease agreement between JPF and Greenflex has an effective date of June 1,
2013, which was several days before Mr. Foust’s and Mr. Sentz’s initial communications.
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There is no evidence that the bank insisted that the operating role Greenflex would
fill must be filled by Greenflex to the exclusion of any other operator. Mr. Foust presents
no evidence that he ever expressed the desire to fill the operational role with someone
else qualified to rent units located in North Dakota. Traditional underwriting
requirements that are designed only to ensure competent operation of a business but that
do not divest management of the borrower of operational control do not give rise to a
fiduciary relationship. See, e.g., In re Am. Consol. Transp. Cos., 433 B.R. 242, 254
(Bankr. N.D. Ill. 2010) (“[C]ontrol is not established when a lender insists on standard
loan agreement restrictions, closely monitors the borrower’s finances, and makes
business recommendations, even [in] the context of heated negotiations. . . . Nor is
control established when a borrower hires a management or restructuring consultant
selected by the lender.”).
Finally, Mr. Foust provides no evidence that Greenflex’s dispute with Badlands
proximately caused the failure of his investment in the 30 units. As set forth above, the
Badlands lawsuit was dismissed with prejudice in less than a month. When deposed, Mr.
Foust candidly admitted that the demise of JPF’s investment came with the end of the oil
boom, explaining, “The major factor was that the drilling pretty much ceased to operate
because there was no economical way to transport oil from North Dakota to the refineries
in the south.” CP at 168. This was problematic for his rental units because, as he put it,
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“When they stopped drilling, their people go home.” CP at 169. Summary judgment
dismissal of the fraudulent inducement claim was proper.
B. The negligent misrepresentation counterclaim was properly dismissed
To prevail on a claim of negligent misrepresentation, a plaintiff must prove by
clear, cogent, and convincing evidence that (1) a defendant supplied information for the
guidance of others in their business transactions that was false, (2) the defendant knew or
should have known that the information was supplied to guide the plaintiff in business
transactions, (3) the defendant was negligent in obtaining or communicating false
information, (4) the plaintiff relied on the false information supplied by the defendant, (5)
the plaintiff’s reliance on the false information supplied by the defendant was justified,
and (6) the false information was the proximate cause of damages to the plaintiff.
Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002).
“Ordinarily, an omission alone cannot constitute negligent misrepresentation,
since a plaintiff must justifiably rely on a misrepresentation.” Merriman v. Am. Guar. &
Liab. Ins. Co., 198 Wn. App. 594, 614, 396 P.3d 351, review denied, 413 P.3d 565
(2017). “But if a party has a duty to disclose information, the failure to do so can
constitute negligent misrepresentation.” Id. As is the case with fraud, the duty to
disclose arises only in the context of an inherently fiduciary relationship or some type of
special relationship of trust and confidence giving rise to quasi-fiduciary duties of
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disclosure. Colonial Imports, Inc. v. Carlton Nw., Inc., 121 Wn.2d 726, 732, 853 P.2d
913 (1993).
Summary judgment dismissal of Mr. Foust’s negligent misrepresentation claim
was proper for the same reason his fraudulent inducement claim was properly dismissed.
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING MR. FOUST’S
MOTION FOR RECONSIDERATION
Mr. Foust moved the court to reconsider its summary judgment rulings, relying on
CR 59(a)(7) and (9). In addition to renewing his arguments in opposition to the bank’s
motion for summary judgment, he argued for the first time that the trial court erred by
dismissing his counterclaims because the bank had violated the Equal Credit Opportunity
Act, 15 U.S.C. § 1691. He also requested permission to amend his answer to the bank’s
complaint, in order to deny that in executing the commercial guaranty, he was acting on
behalf of his marital community.
The trial court denied the motion “for the reasons set forth in [the bank’s]
response.” CP at 339. Mr. Foust characterizes those reasons as “(1) there was no
‘adverse action’ which required Bank to give its reasons to Foust, (2) Foust relied on
conspiracy theories and speculation, and (3) Foust provided no basis to retract his
admission of acting on behalf of his marital community.” Br. of Appellant at 17.
Additional arguments made by the bank in its response were that Mr. Foust failed to
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demonstrate a special relationship giving rise to a duty to disclose and that the Equal
Credit Opportunity Act and withdrawal of admission issues were new theories of
nonliability that he failed to make initially and that relied on new facts.
“By bringing a motion for reconsideration under CR 59, a party may preserve an
issue for appeal that is closely related to a position previously asserted and does not
depend upon new facts.” River House Dev. Inc. v. Integrus Architecture, P.S., 167 Wn.
App. 221, 231, 272 P.3d 289 (2012). “But while the issue is preserved, the standard of
review is less favorable.” Id. We review a trial court’s denial of a motion for
reconsideration for abuse of discretion. Id. The trial court’s discretion includes its
prerogative to refuse to consider an argument that is raised for the first time on
reconsideration absent a good excuse. Id.
The trial court did not abuse its discretion by refusing to reconsider the issues
initially raised in Mr. Foust’s opposition to the bank’s motion for summary judgment, for
the reasons set forth in section I.
As to the new issues, the trial court did not abuse its discretion by refusing to
consider them because they were not closely related to positions Mr. Foust had
previously asserted. They depended on new facts: whether a communication from Mr.
Sentz on August 20, 2013, was an “adverse action” within the meaning of the Equal
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Credit Opportunity Act,6 and whether Mr. Foust had acted on behalf of his marital
community in executing the commercial guaranty. For that reason alone, the trial court
was not obliged to consider the arguments. Wilcox v. Lexington Eye Inst., 130 Wn. App.
234, 241, 122 P.3d 729 (2005).
In addition, the contention that the Equal Credit Opportunity Act was violated is
patently without merit. The act prohibits discrimination on the basis of race, color,
religion, national origin, sex, marital status, or because a borrower gets public assistance.
15 U.S.C. § 1691(a). To effectuate its purpose, the act includes protections, one being
that an applicant against whom adverse action is taken must be provided by the creditor
with a statement of reasons for the adverse action. 15 U.S.C. § 1691(d)(2). “‘[A]dverse
action’ means a denial or revocation of credit, a change in the terms of an existing credit
arrangement, or a refusal to grant credit in substantially the amount or on substantially
the terms requested.” 15 U.S.C. § 1691(d)(6). The statement of reasons helps identify
when the creditor has acted in a discriminatory fashion.
6
In electronic mail to Mr. Foust on August 20, Mr. Sentz had stated, “I am sorry
to inform you that your requested financing for units in North Dakota is no longer a
viable possibility.” CP at 257. In deposition, Mr. Foust surmised that Mr. Sentz sent the
e-mail because Mr. Foust had said he was “out of the deal” because Dr. Sundseth was
“impossible to deal with.” CP at 188. Six days later, on August 26, Mr. Sentz sent an e-
mail to Mr. Foust explaining that he was once again able to consider financing for the 30
units.
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Consistent with the clear intent of the legislation, the statement of reasons is
required when adverse action is taken on the credit application and in this case there was
only one application, by JPF, not Mr. Foust. The bank acted favorably, not adversely, on
the application. No statement of reasons was needed because there could be no
contention that the bank had discriminated in acting on JPF’s credit application.
III. ATTORNEY FEES
The commercial guaranty provides that Mr. Foust must pay upon demand all of
the bank’s attorney fees and legal expenses incurred in connection with the enforcement
of the guaranty. Under RCW 4.84.330,
In any action on a contract or lease . . . where such contract or lease
specifically provides that attorneys’ fees and costs, which are incurred to
enforce the provisions of such contract or lease, shall be awarded to one of
the parties, the prevailing party, whether he or she is the party specified in
the contract or lease or not, shall be entitled to reasonable attorneys’ fees in
addition to costs and necessary disbursements.
....
As used in this section “prevailing party” means the party in whose
favor final judgment is rendered.
Both parties request an award of attorney fees under the terms of the commercial
guaranty and RCW 4.84.330, should they prevail. The bank is the prevailing party and is
awarded its fees and costs on appeal subject to its timely compliance with RAP 18.1(d).
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Affirmed.
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:
Pennell, A.CJ.
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Baker Boyer Nat'l Bank v. James Patterson Foust, Jr.
Combined Opinion