(dissenting)—While I agree with the majority holding on the consumer protection issue, I do not agree with the conclusion the purchasers are not entitled to relief because they elected to sue for specific performance and then failed to avail themselves of the judgment for specific performance and damages. This court may fashion a remedy for purchasers without engaging in what the majority terms "inappropriate judicial creativity."
A chronology of events is important with respect to this court's authority to consider legal as well as equitable remedies. On February 9, 1983, the trial court granted specific performance and damages, conditioned upon performance of certain acts within 30 days, and damages and attorney fees under the Consumer Protection Act (CPA). On March 11, 1983, a notice of appeal was filed by the broker. On March 21, 1983, a notice of cross appeal was filed and on May 16, 1983, the trial court vacated the specific performance and damage award because of the purchasers' failure to perform, but let the CPA award remain. Consequently, the trial court in reaffirming the CPA award indirectly reaffirmed its findings that the broker had engaged in intentional misrepresentation which had caused damage to the purchasers.
*868This court accepted review of the trial court's decision on March 11, 1983, when the notice of appeal was filed by the broker. RAP 6.1.
An appeal suspends the time allowed in the judgment or order appealed from for the performance of a condition which affects a party's substantive right or obligation. As a result, the time for performance of the condition in the judgment or order begins after the appellate court's decision becomes effective.
King v. King, 2 Wn. App. 386, 388-89, 468 P.2d 464 (1970) (citing Borrow v. El Dorado Lodge, 75 Ariz. 218, 254 P.2d 1027 (1953); 4 Am. Jur. 2d Appeal and Error § 363 (1962); 28 A.L.R. 1029 (1924)). Therefore, the filing of a second appeal by the purchasers from the vacation order entered by the trial court was not necessary because all action in the trial court was stayed by acceptance of the original notice of appeal filed by the broker. See RAP 7.2(e).
Whether the specific performance and damage award fashioned by the trial court was appropriate is not an issue this court will consider, for the remedy has become moot. In the summer of 1983, during the pendency of this appeal, another water slide was built in the Wenatchee area, negating the necessity for acquisition of the broker's property.
However, the purchasers should not be denied a remedy. Responding to the inadequacy of specific performance, purchasers submitted a supplemental appellate brief on their right to money damages, to which the broker replied. Included in their brief were alternative measures of damages: $19,500 based on a liquidated damage clause in the earnest money agreement, or $5,000 based on a reliance interest.
In this instance the issue before the trial court was whether the broker had intentionally misrepresented the ownership of the property causing damage to the purchasers. The trial court had an option to award either specific performance, or legal damages. It chose to do both, by granting specific performance, damages and damages under the CPA. Certainly, this court has the authority to consider *869no less than what the trial court considered and granted. Zastrow v. W.G. Platts, Inc., 57 Wn.2d 347, 350, 357 P.2d 162, 360 P.2d 354 (1960) makes the following comment:
As to the authority of an equity court to award damages, this question is well settled. The rule is this—once a court of equity has properly acquired jurisdiction over a controversy, such a court can and will grant whatever relief the facts warrant, including the granting of legal remedies. See 49 Am. Jur. 192; 81 C. J. S. 778; also, Twohy v. Slate Creek Mining Co., 31 Wn. (2d) 668, 198 P. (2d) 832 (1948), and Hubbell v. Ward, 40 Wn. (2d) 779, 246 P. (2d) 468 (1952). The obvious purpose of this rule is to avoid a needless multiplicity of litigation, Biggs v. Gilbert-Tilbury Co., 106 Wash. 271, 179 Pac. 839 (1919). In the case at bar, respondents' prayer for relief, quoted above, not only requested specific performance, but also "such other and further relief as to the court seems meet and proper."
The liquidated damage clause in the earnest money agreement provided the following:
It is agreed, if either seller or buyer fails to perform his part of this agreement, he shall forthwith pay to the other party hereto a sum equal to 10% of the agreed price of sale as consideration for the execution of this agreement by such other party.
The agreed price of sale was $195,000. Finding of fact 18 sets forth the following:
Subsequent to the receipt of the title report a series of letters were exchanged by the parties and their counsel. In these letters plaintiffs were seeking to settle their claim against defendants based on defendants' misrepresentation of their ownership of the real property. No settlement could be reached and on June 4, 1982, plaintiffs, through their attorney, notified defendants through their attorney that the plaintiffs were willing to perform under the terms of the Earnest Money Agreement. No time for performance was set forth in the Earnest Money Agreement. Plaintiff's tender of performance under the Earnest Money Agreement was due upon defendant's preparation of the closing documents. Defendants refused to proceed to prepare any closing documents when they were notified of plaintiffs' claim. Plaintiffs *870were ready, willing, and able to perform under the Earnest Money Agreement on 4 June 1982.
In Ashley v. Lance, 80 Wn.2d 274, 280, 493 P.2d 1242, 62 A.L.R.3d 962 (1972), the court stated:
We have looked with favor on liquidated damages clauses. E.g., Underwood v. Sterner, 63 Wn.2d 360, 387 P.2d 366 (1963); Management, Inc. v. Schassberger, 39 Wn.2d 321, 235 P.2d 293 (1951). Such clauses will be upheld " [ujnless it be demonstrated that provisions for liquidated damages are actually a penalty or are under the circumstances otherwise unlawful . . .". Jenson v. Richens, 74 Wn.2d 41, 47, 442 P.2d 636 (1968).
Unless the trial court were to determine on remand that this particular contract clause was intended by the parties as a penalty or that the amount of $19,500 was an unreasonable forecast in March 1982 of the harm that would be occasioned should breach occur, liquidated damages would be the appropriate legal remedy to be awarded in lieu of specific performance.
The plaintiffs have been wronged by an intentional misrepresentation by which the broker would profit $65,000. Under these circumstances they are entitled to damages for that wrong.
The cause should be remanded to the Superior Court for consideration of an award of liquidated damages or such other damages as the court deems reasonable.
Review denied by Supreme Court January 18, 1985.