Thomas Dutcher & Diane Dutcher v. Wynden Holman & Jamie Holman

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Co
C-11
THOMAS DUTCHER, a single )
person, and DIANE DUTCHER, a ) No. 74976-5-1
single person, )
) DIVISION ONE
Respondents, )
)
v. ) UNPUBLISHED OPINION
)
VVYNDEN HOLMAN and JAMIE )
HOLMAN, a married couple, )
)
Appellants. ) FILED: April 10, 2017
)
LEACH, J. — Wynden Holman appeals the trial court's summary judgment

decision in favor of Thomas Dutcher. Dutcher agreed to sell land to the Lummi

Tribe of the Lummi Reservation,(Lummi Nation). Twelve days before closing,

Holman recorded a lien against the property. Dutcher paid Holman $11,550 to

clear the title and ensure the transaction with the Lummi Nation could close on

time. Later, Dutcher filed this lawsuit against Holman, disputing the lien and

seeking damages for unjust enrichment, slander of title, and a violation of the

Consumer Protection Act(CPA).1

Because Dutcher affirmatively established each element of the unjust

enrichment and slander of title claims and Holman does not identify an issue of

1 Ch. 19.86 RCW.
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fact to preclude summary judgment, the trial court properly granted Dutcher

summary judgment on those claims. But because questions of fact exist about

the public interest impact element of the CPA claim, summary judgment on that

claim is inappropriate. Thus, we affirm summary judgment on the unjust

enrichment and slander of title claims and reverse summary judgment on the

CPA claim and remand for further proceedings related to that claim.

In addition, we affirm the award of fees on the slander of title claim and

award Dutcher additional fees incurred in connection with that claim on appeal.

FACTS

In 2008, Holman's brother, Darin Holman, and Darin's now former wife,

Kristen, acquired certain property in Bellingham, Washington. On the property,

they established and operated a manufactured home sales business.

At some point after he acquired the property, Darin asked Holman to

assist with various projects at the property. Holman provided funds and general

assistance in getting the business up and running at the property. In April 2012,

Holman recorded a lien against the property. Holman is a real estate broker.

The lien stated it was for "Real Estate Services" Holman performed having a

value of $18,354, $16,500 of which remained unpaid. In discovery, Holman

could not identify any document supporting the lien.

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From 2008 through August 2012, Kristen's father, Thomas Dutcher,

loaned Darin and Kristen about $800,000 to finance their business and living

expenses. In June 2012, to repay part of this loan, Darin and Kristen signed and

delivered to Dutcher a warranty deed conveying the property to him. But Dutcher

did not record the deed.

In June 2013, the Lummi Nation agreed to buy the property. Because

Dutcher had not recorded the warranty deed, the county records showed Darin

as the owner. After Dutcher recorded the deed on June 27, 2013, he and the

Lummi Nation signed a second purchase and sale agreement, identifying

Dutcher as the seller of the property. The agreement set a closing date of July

31, 2013.

Twelve days before closing, Holman filed a second lien for "[s]ign

installation / septic installation / permits and associated fees / real estate

services." The second lien claim stated that these services had a value of

$18,454, with $16,600 still owed. It also stated that Darin Holman owned the

property. In deposition, Holman admitted that he knew that Dutcher owned the

property when he signed and recorded the lien.

Dutcher asked Holman to release the second lien claim. Holman refused

but agreed to accept a reduced payment of $11,550. Dutcher knew that the

Lummi Nation was unwilling to delay the closing date. To avoid losing the sale,

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Dutcher paid Holman the $11,550 out of the sale proceeds. The property sale

closed on July 30, 2013.

In 2014, Dutcher sued Holman. He alleged claims of unjust enrichment,

slander of title, and violation of the CPA. Holman moved for partial summary

judgment, seeking dismissal of Dutcher's slander of title and CPA claims.

Dutcher moved for summary judgment on all claims. The trial court denied

Holman's motion, granted Dutcher's, and entered a judgment awarding

$75,331.39 to Dutcher.

Holman appeals the trial court's decision on both summary judgment

motions.

STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo, engaging in the

same inquiry as the trial court and viewing the facts and reasonable inferences

from those facts in the light most favorable to the nonmoving party.2 Still, "[t]he

nonmoving party must set forth specific facts showing a genuine issue and

cannot rest on mere allegations."3 Summary judgment is appropriate where

"there is no genuine issue as to any material fact and.. . the moving party is

entitled to a judgment as a matter of law."4

2McGowan v. State, 148 Wn.2d 278, 289, 60 P.3d 67(2002).
3 Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132,
769 P.2d 298 (1989).
4 CR 56(c).
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ANALYSIS

Unjust Enrichment

First, Holman contends that the trial court erred in granting summary

judgment on Dutcher's unjust enrichment claim. "Unjust enrichment is the

method of recovery for the value of the benefit retained absent any contractual

relationship because notions of fairness and justice require it."5 The elements of

unjust enrichment are "(1) the defendant receives a benefit, (2)the received

benefit is at the plaintiff's expense, and (3) the circumstances make it unjust for

the defendant to retain the benefit."6 Holman claims issues of fact exist as to the

third element.

Holman asserts that he performed services and provided money that went

to improve the property and, therefore, it is not inequitable for him to retain the

payment from the proceeds of the sale. He values his services at $18,454 but

does not include any documentation to support this claim or show how he

calculated this sum. No evidence shows that he is entitled to the $11,550

payment. Thus, no evidence creates a question of fact about whether it was

unjust for Holman to retain this payment.

Holman claims that Dutcher's voluntary payment of the $11,550 to Holman

precludes Dutcher from now claiming unjust enrichment. Under the voluntary

5 Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258(2008).
6 Young, 164 Wn.2d at 484-85.
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payment doctrine, "money voluntarily paid under a claim of right to the payment,

and with knowledge by the payor of the facts on which the claim is based, cannot

be recovered on the ground that the claim was illegal, or that there was no

liability to pay in the first instance."7 But this principle does not apply to a

payment made under coercive circumstances.8 At oral argument, Holman's

counsel conceded that Dutcher did not have time to judicially contest Holman's

claim before the closing date. Dutcher paid Holman under the reasonable belief

that he would lose the sale to the Lummi Nation if he contested Holman's claim.

Therefore, the payment cannot be considered voluntary.

Because Holman has not shown a question of fact about the inequity of

his retention of the payment, summary judgment for Dutcher is appropriate.

CPA Claim

Next, Holman challenges the trial court's granting summary judgment on

Dutcher's CPA claim. To prevail on a CPA claim, a plaintiff must show (1) an

unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) a

public interest impact,(4) injury to the plaintiff in his or her business or property,

and (5)a causal link between the unfair or deceptive act and the injury.8 Holman

claims that Dutcher has failed to establish the trade or commerce and public

7Hawkinson v. Conniff, 53 Wn.2d 454, 458, 334 P.2d 540(1959).
8 See Hawkinson, 53 Wn.2d at 458.
9 Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105
Wn.2d 778, 780, 719 P.2d 531 (1986).
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interest impact elements. He also claims that no facts show a public interest

impact and the CPA claim should have been dismissed.

Trade or Commerce

First, we consider whether the transaction took place in trade or

commerce. Holman contends that private transactions among family members

do not occur in trade or commerce. We disagree with this categorical view.

Here, Holman rested the lien claims upon the alleged provision of real estate

services. Because he is a real estate broker and the lien purportedly secured

payment for real estate services, his conduct occurred in his trade or business.

Holman also claims that his conduct was not in trade or commerce

because he did not act in furtherance of his business or career. Trade or

commerce "'includes only the entrepreneurial or commercial aspects of

professional services, not the substantive quality of services provided.'"10

"Claims directed at the competence of and strategies employed by a professional

amount to allegations of negligence and are exempt from the Consumer

Protection Act."11 Here, however, Dutcher's claims do not involve allegations of

professional malpractice or negligence. Rather, they involve the misuse of

10 Michael v. Mosquera-Lacy, 165 Wn.2d 595, 602-03, 200 P.3d 695
(2009)(quoting Ramos v. Arnold, 141 Wn. App. 11, 20, 169 P.3d 482 (2007));
see also Quinn v. Connelly, 63 Wn. App. 733, 742, 821 P.2d 1256 (1992).
11 Ramos, 141 Wn. App. at 20.
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Holman's profession as a real estate broker. Holman cannot rely on cases

involving allegations of negligence to avoid liability under the CPA.

Public Interest Impact

Next, we consider whether Holman's actions have a public interest impact.

A plaintiff can show a public interest impact in two ways. "[A] claimant may

establish that the act or practice is injurious to the public interest because

it. . .(a)[i]njured other persons; (b) had the capacity to injure other persons; or

(c) has the capacity to injure other persons."12 Or a plaintiff can show a per se

public interest impact if the conduct violates a statute that contains a legislative

declaration that the conduct impacts the public interest.13 Dutcher claims that he

met this element under either test.

First, Dutcher asserts that Holman's actions constitute a per se public

interest impact because Holman violated the contractor registration act.14

Indeed, a violation of the contractor registration act constitutes a public interest

impact.15 But Dutcher does not show a violation of the contractor registration act.

Dutcher asserts that because Holman was not a licensed contractor, his lien

12RCW 19.86.093.
13 Hangman Ridge, 105 Wn.2d at 791.
14 Ch. 18.27 RCW.
15 RCW 18.27.350 ("The fact that a contractor is found to have committed
a misdemeanor or infraction under [the contractor registration act] shall be
deemed to affect the public interest and shall constitute a violation of chapter
19.86 RCW.").
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claims for contracting services constituted a violation of the contractor

registration act.16 While Holman admits that he is not and never has been a

licensed contractor, Dutcher does not show that Holman ever acted as a

contractor. Dutcher contends that Holman held himself out as a contractor by

filing a material and mechanic's lien. But the form that Holman used does not

reference the contractor registration act. Nor do the claims of lien state that

Holman was doing contracting work. Because Dutcher has not established that

Holman violated the contractor registration act, he has not established a per se

violation of the CPA.17

Second, Dutcher asserts that Holman's conduct impacts the public interest

because it has the capacity to injure others. "When the transaction is a private

dispute. . . and not a consumer transaction, it is more difficult to show public

interest in the subject matter. There must be a likelihood additional persons have

16 RCW 18.27.080 ("No person. . . acting in the capacity of a contractor
may bring or maintain any action in any court of this state for the collection of
compensation for the performance of any work. ..for which registration is
required under this chapter without alleging and proving that he or she was a
duly registered contractor. . . at the time he or she contracted for the
performance of such work.").
17 Dutcher cites Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581,
675 P.2d 193 (1983), for the proposition that providing professional services
without a license gives rise to a per se CPA violation. Bowers found that
unauthorized practice of law had a public interest impact. But Bowers did not say
that this conduct had a per se public interest impact. Rather, it found the public
interest impact element was met because the practice was capable of repetition.
Bowers, 100 Wn.2d at 592. See also State v. Pac. Health Ctr., Inc., 135 Wn.
App. 149, 172-73, 143 P.3d 618(2006).
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been or will be injured in the same fashion."18 Factors indicating public interest in

the context of a private dispute include: "(1) Were the alleged acts committed in

the course of defendant's business? (2) Did defendant advertise to the public in

general? (3) Did defendant actively solicit this particular plaintiff, indicating

potential solicitation of others? (4) Did plaintiff and defendant occupy unequal

bargaining positions?"18 These factors "represent indicia of an effect on public

interest from which a trier of fact could reasonably find public interest impact."2°

Considering these factors, Dutcher does not establish a public interest

impact as a matter of law. Dutcher relies on the fact that Holman twice recorded

a baseless lien to show that this action is likely to affect additional plaintiffs. But

both claims of lien relied on the same set of services that Holman insists that he

provided, and both claims of lien relate to the same property. No evidence

shows that Holman advertised his services or solicited Dutcher's business.

While Dutcher has presented evidence from which a reasonable jury could

conclude that Holman's conduct did impact the public interest, that jury could

also reach the opposite conclusion.21

18 Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wn. App. 732,
744-45, 935 P.2d 628(1997).
18 Hangman Ridge, 105 Wn.2d at 790-91.
20 Hangman Ridge, 105 Wn.2d at 791.
21 See Hangman Ridge, 105 Wn.2d at 789-90 (stating that "whether the
public has an interest in any given action is to be determined by the trier of fact
from several factors").
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Thus, we also reject Holman's assertion that no evidence shows a public

interest impact and that he is entitled to summary judgment on the CPA claim.

As noted above, Holman twice recorded a baseless lien and appeared to use his

position as a real estate broker to do so. A reasonable jury could find this

conduct is likely to injure additional plaintiffs in the same fashion.22

In sum, although the evidence is sufficient to support a fact finder's

conclusion that there was a public interest impact, it is insufficient to establish a

public interest impact as a matter of law.

Dutcher has established four elements of the CPA claim as a matter of

law, but he has not shown that he is entitled to summary judgment on the public

interest impact element. So Holman has not shown that he is entitled to

summary judgment on his CPA claim.

Slander of Title

We next consider Dutcher's slander of title claim. To prevail on a slander

of title claim, a claimant must show that words concerning the property (1) are

false, (2) were maliciously published, (3) were spoken with reference to some

pending sale or purchase of property, (4) go to defeat plaintiffs title, and

(5) resulted in plaintiff's pecuniary loss.23 Holman first claims that issues of fact

22 SeeHangman Ridge, 105 Wn.2d at 790.
23 Rorvig v. Douglas, 123 Wn.2d 854, 859, 873 P.2d 492 (1994) (citing
Pay 'N Save Corp. v. Eads, 53 Wn. App. 443,448, 767 P.2d 592(1989)).
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exist about the malice and pecuniary loss elements. He also asserts that as a

matter of law, because the liens did not defeat Dutcher's title, the trial court

should have granted Holman's motion for summary judgment on this claim.

As a preliminary matter, Holman claims that a plaintiff making a slander of

title claim has a heightened burden of proof. Holman asserts that because a

slander of title claim includes "malice" as an element, the claimant must prove

this claim by "clear, cogent, and convincing evidence." Holman relies on Duc

Tan v. Le,24 which applies this heightened standard to malice in a defamation

case. But Holman cites no case applying this standard outside of the First

Amendment context, and we assume there is none.25 Holman does not

persuade this court that more than the preponderance of the evidence standard

should apply to slander of title claims.26 Besides, Holman can show no issue of

fact under either standard.

24177 Wn.2d 649, 668, 300 P.3d 356 (2013).
25Duc Tan, 177 Wn.2d at 668.
26 Further, even if Holman could show that the clear and convincing
standard applies in this case, Washington case law suggests that the standard
would apply only to the malice element, not each element as Holman asserts.
See Duc Tan, 177 Wn.2d at 668 & n.5.
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Malice

Holman maintains that a question of fact exists about whether he acted

with malice. "The element of malice is met when the slanderous statement is not

made in good faith or is not prompted by a reasonable belief in its veracity."27

This case is like Rorviq v. Douglas.28 In Rorviq, the court held that

defendants acted with malice by recording a memorandum of agreement to

prevent a proposed sale when they knew no agreement had been reached.29

Similarly here, Holman admitted in deposition testimony that he knew of no legal

authority giving him the right to assert the liens:

Q What.. . information or authority were you relying on
to support the conclusion that under the laws of the
State of Washington, you could assert—you could
record a lien that would be an encumbrance on this
property?

A None.

Even though you swore that you had the right under
the laws of the State of Washington; right?

A Yes.

He further admits that no contract existed for his alleged services or claimed

compensation. Finally, Holman acknowledges that he knew that Dutcher owned

27 Rorviq, 123 Wn.2d at 860.
28 123 Wn.2d 854, 873 P.2d 492(1994).
28 Rorviq, 123 Wn.2d at 860-61.
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the property when Holman recorded the lien. These undisputed facts establish

that Holman acted with malice.

Holman attempts to show an issue of fact by asserting that Dutcher

acknowledged the debt and negotiated a payoff. We disagree. Dutcher never

acknowledged the lien's validity. Dutcher paid Holman not because he thought

the lien was valid, but because he needed to clear the title so the sale to the

Lummi Nation could close. That Dutcher negotiated a payoff does not change

the fact that Holman maliciously filed baseless claims of lien.

Pecuniary Loss

Holman also maintains that a question of fact exists about the pecuniary

loss element.

"(1) The pecuniary loss for which a publisher of injurious falsehoods
is subject to liability is restricted to
(a) the pecuniary loss that results directly and immediately from
the effect of the conduct of third persons, including impairment of
vendibility or value caused by disparagement, and
(b) the expense of measures reasonably necessary to
counteract the publication, including litigation to remove the doubt
cast upon vendibility or value by disparagement."[30]

Holman argues that the lien did not impair vendibility because Dutcher

sold the property at the time he paid the lien. But this argument lacks merit. The

30 Rorvici, 123 Wn.2d at 863 (emphasis omitted) (quoting RESTATEMENT
(SECOND) OF TORTS § 633(AM. LAW INST. 1977)).
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false lien compelled Dutcher to pay $11,550 in order to sell the property. This

sufficiently shows a pecuniary loss.

Goes To Defeat Plaintiff's Title

Next, Holman contends that the trial court should have dismissed the

slander of title claim because the false publication did not defeat Dutcher's title.

Holman relies on Black's Law Dictionary definitions of "defeat" and "title." To

"defeat" is "[t]o annul or render (something) void ."31 "Title" is

"[t]he union of all elements (as ownership, possession, and custody) constituting

the legal right to control and dispose of property."32 Relying on these definitions,

Holman asserts that a mere monetary encumbrance does not impact any

elements of title in such a way as to render it void. Because the lien did not void

Dutcher's title, Holman argues, it did not defeat Dutcher's title. We disagree.

Slander of title does not require that the false publication in fact defeats

the plaintiff's title, only that it goes to defeat the plaintiffs title. Here, Holman

does not dispute that if Dutcher had not negotiated the release of Holman's lien,

Dutcher could not have conveyed clear title to his buyer, preventing the sale to

the Lummi Nation. Thus, under the facts of this case, the false publication

interfered with Dutcher's ownership rights, specifically, his right to dispose of the

31 BLACK'S LAW DICTIONARY 507(10th ed. 2014).
32 BLACK'S at 1712
j
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property.33 Slander of title does not require that the false publication entirely and

permanently annul the plaintiff's title. A cloud that impairs a sale goes to defeat

plaintiffs title. Accordingly, we conclude that as a matter of law, Holman's liens

did go to defeat Dutcher's title.

Because Dutcher establishes every element of the slander of title claim

and Holman identifies no issue of fact, the trial court properly granted summary

judgment for Dutcher on this claim.

Special Damages for Slander of Title

Holman also claims that any damages awarded to Dutcher on his slander

of title claim should not include attorney fees. Generally, "absent a contract,

statute, or recognized ground of equity, the prevailing party does not recover

attorney fees as costs of litigation."34 But Rorviq held that "attorney fees are

recoverable as special damages in a slander of title action."35 Our Supreme

Court reasoned that "actual damages are difficult to establish and often times are

minimal in slander of title. Fairness requires the plaintiff to have some recourse

against the intentional malicious acts of the defendant."36

33 See Guimont v. Clarke, 121 Wn.2d 586, 602, 854 P.2d 1 (1993)
(identifying the right to dispose of property as a fundamental attribute of property
ownership).
34 Rorvig, 123 Wn.2d at 861.
35 Rorvig, 123 Wn.2d at 861.
36 Rorvig, 123 Wn.2d at 862.

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Holman attempts to distinguish Rorviq by citing Rorviq's statement that

"[a]ttorney fees incurred in removing the cloud from the title and restoring

vendibility are necessary expenses of counteracting the effects of the slander."37

Relying on this language, Holman claims Dutcher cannot recover attorney fees

because he did not incur fees in "removing the cloud from the title" and "restoring

vendibility."

But our Supreme Court has clearly recognized that attorney fees can be

recovered as special damages in slander of title actions.38 The court noted that

the defendant in these actions leaves the plaintiff with one course of action,

litigation.39 No case limits this recovery to those fees incurred removing the stain

of the slander. Moreover, Dutcher's choice to pay a negotiated sum to release

the lien rather than litigate to clear the title likely mitigated his damages by

avoiding the loss of the sale. Dutcher should not lose his right to recover

attorney fees because he chose to mitigate his damages and then litigate with

Holman. The same policy reasons for allowing the recovery of fees are present

whether Dutcher sued to clear title or sued to recover the money Holman forced

him to pay to clear title.

37 Rorviq, 123 Wn.2d at 863.
38 City of Seattle v. McCready, 131 Wn.2d 266, 275, 278, 931 P.2d 156
(1997)(recognizing Rorviq's holding that attorney fees as damages are available
in slander of title actions and declining to extend the rule to actions brought for
the quashing of warrants).
39 Rorviq, 123 Wn.2d at 862.
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The trial court properly awarded attorney fees on the slander of title claim.

Attorney Fees

Dutcher requests an award of attorney fees incurred in this appeal.°

"Attorney fees and other legal costs incurred in clearing a slandered title are

recoverable as damages," both at trial and on appeal.'" The CPA also permits

award of reasonable attorney fees in a successful appea1.42 Because Dutcher is

the prevailing party on the slander of title claim, he is entitled to recover attorney

fees incurred for that claim. However, because his CPA claim remains to be

decided in the trial court on remand, any decision on this fee claim is premature.

We grant Dutcher's request for fees in part.

CONCLUSION

We affirm in part and reverse in part. Dutcher has established, by

undisputed facts, each element of his slander of title and unjust enrichment

claims. Because Holman does not identify an issue of fact on either, we affirm

summary judgment for Dutcher on those claims. We also affirm the trial court's

decision to award attorney fees to Dutcher and award additional fees incurred in

this appeal.

° RAP 18.1.
41 Amresco lndep. Funding, Inc., v. SPS Props., LLC, 129 Wn. App. 532,
540, 119 P.3d 884 (2005).
42 Evergreen Collectors v. Holt, 60 Wn. App. 151, 157, 803 P.2d 10
(1991).
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A question of fact about the public interest impact element exists for

Dutcher's CPA claim. For this reason, summary judgment in favor of either party

on this claim is inappropriate. We reverse summary judgment on the CPA claim.

We remand this case to the trial court for further proceedings consistent

with this opinion.

WE CONCUR:

iNic-(/•, y AS
/

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