IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KEN HATCH and CATHI HATCH, No. 74510-7-1
husband and wife, and the marital
community composed thereof, DIVISION ONE
Appellants,
V. UNPUBLISHED OPINION
CARY FALK,
Respondent. FILED: June 19, 2017
SCHINDLER, J. — Ken and Cathi Hatch (collectively, Hatch) appeal summary
judgment dismissal of the lawsuit against Cary Falk to recover the real estate purchase
and sale agreement(REPSA)earnest money. We affirm dismissal of the lawsuit.
REPSA
Falk owned a house in Woodinville. In 2014, Falk listed the house for sale with
Skyline Properties Inc. On October 29, 2014, Hatch made an offer through Coldwell
Banker Bain real estate agent Toni Hoffman to purchase the house for $1,050,000. On
November 6, Falk submitted a counteroffer for $1,156,000. Hatch accepted the
counteroffer.
On November 7, Hatch and Falk entered into a REPSA. The REPSA states that
Hatch will pay Falk the purchase price at the closing scheduled on January 5, 2015, and
No. 74510-7-1/2
Falk will convey title by statutory warranty deed. Under the terms of the REPSA, Hatch
agreed to deposit $35,000 in earnest money with his real estate agent.
The liquidated damages provision of the REPSA states that if Hatch "fails,
without legal excuse, to complete the purchase of the Property," the earnest money
"shall be forfeited to the Seller." The REPSA states, in pertinent part:
Default. In the event Buyer fails, without legal excuse, to complete the
purchase of the Property, then the following provision . . . shall apply:
i. Forfeiture of Earnest Money. That portion of the Earnest Money
that does not exceed five percent(5%)of the Purchase Price shall
be forfeited to the Seller as the sole and exclusive remedy available
to Seller for such failure.
On November 11, Hatch delivered a $35,000 check for the earnest money to Hoffman
and Coldwell Banker Bain.
After inspections of the house, Hatch requested a $17,000 reduction in the
purchase price. In a November 23 e-mail to Hoffman, Falk agreed to reduce the
purchase price on condition that Hatch either release $20,000 of the earnest money and
agree to a December 5 closing date or release the entire $35,000 in earnest money and
keep the January 5, 2015 closing date. The November 23 e-mail states the agreement
to the $17,000 reduction in the price is "subject to" Hatch agreeing to one of the two
following options:
a. That the $20,000 be released non-refundable upon
acceptance of this concession as previously agreed and that
[Hatch] close on the house by December 5th or;
b. That[Hatch] release, non-refundable, the entire $35,000
earnest money upon acceptance of this concession.
[Hatch] want[s] to insure [he is] getting funds to have a perfect house. The
seller, me, wants to insure that the house will close as agreed.
If either of the two options above are agreeable to [Hatch],[my real estate
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agent] or you can write up the necessary paperwork and I will sign it.
On November 24, Hoffman sent Falk an e-mail informing him that in exchange
for a reduction in the purchase price and keeping the January 5 closing date, Hatch
agreed to release the $35,000 in earnest money. Later that same day, Hoffman sent an
e-mail to Hatch with an "Inspection Response for Form 35"(Inspection Response
Form). The Inspection Response Form states, in pertinent part:
Purchase price shall be $1,139,000. Seller to provide access to
property until close date
Earnest monies of $35,000 to be released to seller, non refundable to
buyer, once inspection response is agreed upon.
Hatch signed the Inspection Response Form. Coldwell Banker Bain released the
earnest money deposit of $35,000 to Falk.
In late December, Hatch told Hoffman that he was not able to get a loan and
wanted to talk to Falk "[a]bout a lease purchase." At 2:47 p.m. on December 26,
Hoffman sent Falk an e-mail. The e-mail states Hatch "would like to speak with [y]ou
directly about the purchase of the house" and asks for Falk's phone number.
Q. You're asking for his phone number and you state that,
"[Hatch] would like to speak to you directly about the purchase of the
house." What specifically, if you know, did [Hatch] want to speak to Mr.
Falk about?
A. About a lease purchase.
Q. Why did he want to speak about a lease purchase?
A. Because he wasn't getting a loan through Banner
Bank.
Q. How do you know he wasn't getting a loan through
Banner Bank?
A. Because he told me that.
According to Hoffman, after she sent the e-mail at 2:47 p.m. on December 26,
Falk called her.
Q. Did you express to Mr. Falk or his wife, who was his
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agent, that[Hatch] couldn't get a loan?
A. Yes.
Q. What did you tell them?
A. I had sent an e-mail to [Falk] telling him that Ken Hatch
wanted to speak with him, and not referencing why, and could I give him
his phone number?
And [Falk] at that time called me and said basically, "What's the
matter? Can't he close?" And I said, "He'd like to talk to you about a
lease purchase."
And [Falk] said,"No offense. I'm sure he's a really nice guy, but I
don't want to talk to him about anything other than closing my house."
Hoffman later testified that she was "not certain" she told Falk during the
December 26 phone conversation that Hatch "couldn't get a loan."1 But Hoffman
testified she believed it was "clear" to Falk on December 26 that Hatch could not get a
loan, and Falk told her he was not interested in discussing a lease purchase.
On December 27, Hatch sent an e-mail to Hoffman asking her to find a "high end
luxury home" to rent with a "minimum of 4,000 square feet." That same day, Hoffman
told Falk that Hatch was not going to purchase the house. At 12:59 p.m. on December
27, Hoffman sent Hatch a "release form." The e-mail states Falk "would like it as soon
as possible so that he can get his house back on the market."
The closing on the house scheduled for January 5, 2015 did not occur.
Lawsuit for Earnest Money
On May 11, 2015, Hatch filed a lawsuit to recover the $35,000 in earnest money.
The complaint asserts that "[i]n accordance with the terms of the Agreement," Co[dwell
1 Hoffman testified, in pertinent part:
Q. And you said [Falk] asked you "Can't he close?" Is that what he
asked?
A. You know, and kind of backing up to my previous answer about
telling him that he couldn't get a loan, I'm not certain I ever said those words to [Falk]. I
believe I said, "He'd like to talk to you about a lease purchase."
Q. Why were you asking about a lease purchase?
A. Because I'd been told they couldn't get a loan.
Q. Did . . . Falk, specifically ask if they could get a loan?
A. I don't believe so.
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Banker Bain released the $35,000 earnest money deposit to Falk. Hatch alleged that
because neither party tendered performance on the January 5, 2015 closing date, the
REPSA "terminated by its terms," and Hatch was entitled to recover the earnest money.
Falk filed a motion for summary judgment dismissal of the lawsuit. Falk argued
Hatch repudiated the agreement before the closing date and therefore, he had no duty
to tender performance. Falk asserted the undisputed evidence established Hatch did
not comply with the terms of the REPSA and under the liquidated damages provision,
he was entitled to retain the earnest money.
In support, Falk submitted a copy of the REPSA, a number of e-mails, and
excerpts from the deposition testimony of Hoffman. Hatch did not move to strike
Hoffman's deposition testimony or any of the other evidence Falk submitted in support
of his motion for summary judgment.2 Hatch submitted no evidence in opposition to
Falk's motion for summary judgment.
Hatch filed a cross motion for summary judgment. Hatch argued that because
neither party tendered performance on the January 5 closing date, as a matter of law
the REPSA "expired" and Falk was not entitled to retain the earnest money. Hatch
conceded that if he repudiated before the closing date, Falk's "performance was
excused, and [Falk] is entitled to the earnest money." But Hatch argued there was no
evidence of a clear or unequivocal "statement or action" that he repudiated the REPSA
before the January 5, 2015 closing date.
The court granted Falk's motion for summary judgment and dismissed the
lawsuit. For the first time in a motion for reconsideration, Hatch argued "[q]uestions of
fact may be present" as to whether Hoffman's statements to Falk constituted
2 The attorney conceded at oral argument that Hatch did not move to strike the evidence.
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repudiation. The court denied the motion to reconsider.
Appeal of Summary Judgment Dismissal
Hatch asserts the court erred in dismissing his lawsuit on summary judgment.3
Hatch argues that because Falk did not tender performance by delivering the deed on
the January 5, 2015 closing date, as a matter of law Falk is not entitled to retain the
earnest money under the REPSA. Falk contends the uncontroverted evidence
establishes Hatch repudiated the REPSA before the closing date.
We review an order of summary judgment dismissal de novo and engage in the
same inquiry as the trial court. Kofmehl v. Baseline Lake, LLC, 177 Wn.2d 584, 594,
305 P.3d 230 (2013). Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of
law. CR 56(c); Kofmehl, 177 Wn.2d at 594. We consider all facts and make all
reasonable factual inferences in the light most favorable to the nonmoving party. Young
v. Key Pharms., Inc., 112 Wn.2d 216, 226, 770 P.2d 182(1989). But "if reasonable
minds could reach only one conclusion from the evidence presented," summary
judgment should be granted. Estate of Becker v. Avco Corp., 187 Wn.2d 615, 621, 387
P.3d 1066 (2017), Allen v. State, 118 Wn.2d 753, 760, 826 P.2d 200 (1992).
Where, as here, a defendant files a motion for summary judgment, the defendant
bears the initial burden to show the absence of genuine issues of material fact. Young,
112 Wn.2d at 225. If the defendant makes this initial showing, the burden shifts to the
3 Hatch also appeals the order denying his motion for reconsideration. However, Hatch does not
assign error to the order or present any argument addressing the order in his briefing. Failure to assign
error or provide argument precludes appellate consideration. RAP 10.3(a)(4),(6); Ang v. Martin, 154
Wn.2d 477, 486-87, 114 P.3d 637(2005)(court will not consider alleged error where appellant does not
assign error or present argument or citation to authority pertaining to issue); Riley v. Iron Gate Self
Storage, 47905-2-11, 2017 WL 1381911, at *10(Wash. Ct. App. Apr. 18, 2017)(declining to consider
challenge to denial of motion for reconsideration where appellant did not present any argument or
supporting authority in his appellate brief).
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No. 74510-7-1/7
plaintiff to set forth specific evidence establishing a genuine issue of material fact.
Young, 112 Wn.2d at 225 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986)). The plaintiff cannot meet its burden by relying on
speculation or "mere allegations, denials, opinions, or conclusory statements" to
establish a genuine issue of material fact. Intl Ultimate, Inc. v. St. Paul Fire & Marine
Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774(2004)(citing CR 56(e)); Grimwood v.
Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517(1988); Seven
Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1(1986). If the
plaintiff fails to make a showing sufficient to establish the existence of a material issue
of fact, summary judgment is proper. Young, 112 Wn.2d at 225.
In a contract for the sale of real estate, payment of the purchase price and
delivery of the deed are concurrent obligations. Wallace Real Estate Inv. Inc. v. Groves,
124 Wn.2d 881, 897, 881 P.2d 1010 (1994); Willener v. Sweeting, 107 Wn.2d 388, 395,
730 P.2d 45 (1986); Bendon v. Parfit, 74 Wash. 645, 648, 134 P. 185 (1913). As a
general rule, the seller is not entitled to liquidated damages for the buyer's breach of the
purchase and sale agreement unless the seller tenders the deed or the buyer
repudiates the agreement. Willener, 107 Wn.2d at 395-96; Wallace, 124 Wn.2d at 897-
98. If the buyer repudiates the agreement, the seller's failure to "concurrently perform
under the purchase and sale agreement" is "irrelevant." Wallace, 124 Wn.2d at 897,
899.
Repudiation "must occur before the other party's performance is due." Grant
County Port Dist. No. 9 v. Wash. Tire Corp., 187 Wn. App. 222, 231, 349 P.3d 889
(2015). Repudiation is a "'positive statement or action by the promisor indicating
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No. 74510-7-1/8
distinctly and unequivocally that he either will not or cannot substantially perform any of
his contractual obligations.'" Wallace, 124 Wn.2d at 8984 (quoting Olsen Media v.
Energy Scis., Inc., 32 Wn. App. 579, 585, 648 P.2d 493(1982)); Grant County, 187 Wn.
App. at 232; VersusLaw, Inc. v. Stoel Rives, L.L.P., 127 Wn. App. 309, 321, 111 P.3d
866 (2005). "'An intent to repudiate may be expressly asserted or circumstantially
manifested by conduct.'" Grant County, 187 Wn. App. at 231-32 (quoting CKP, Inc. v.
GRS Constr. Co., 63 Wn. App. 601, 620, 821 P.2d 63(1991)); VersusLaw, 127 Wn.
App. at 321. But a party's"'doubtful and indefinite statements' suggesting only that it
may not perform do not demonstrate repudiation." Grant County, 187 Wn. App. at 232
(quoting Wallace, 124 Wn.2d at 898). Although repudiation of a contract is generally a
question of fact, repudiation may be decided on summary judgment if"'reasonable
minds can reach only one conclusion.'" VersusLaw, 127 Wn. App. at 321 (quoting
Alaska Pac. Trading Co. v. Eagon Forest Prods., Inc., 85 Wn. App. 354, 365, 933 P.2d
417 (1997)).
Hatch concedes that if he repudiated the REPSA, Falk is entitled to retain the
$35,000 in earnest money. But Hatch contends there is no evidence that he made a
clear or unequivocal statement to repudiate or not perform before the closing date. On
appeal, Hatch relies on Hoffman's deposition testimony about the December 26
telephone conversation with Falk to argue there is no proof of repudiation. Hatch
specifically points to the testimony that although Hoffman did not remember exactly
what was said, she believed it was "clear" to Falk that Hatch was not "going to buy the
home and close."
Q. Did you tell [Falk] why you were asking about a lease
4 Internal quotation marks omitted.
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purchase?
A. I honestly don't remember every single word of that
conversation. I think it was clear that[Hatch] w[as]n't prepared to close on
the house and.. . wanted to find an alternative way of purchasing the
home.
Q. When you say "w[as]n't prepared to close on the
house" what do you mean by "w[as]n't prepared"?
A. Couldn't get the loan that was stated in the contract.
Q. So in your conversation with Mr. Falk, do you feel that
that was made clear to him when you spoke with him?
[A.] It was clear to him that[Hatch] w[as]n't going to buy
the home and close.
Although Hoffman's testimony about the telephone conversation on December
26 does not clearly establish repudiation, the uncontroverted testimony of Hoffman
establishes that on December 27, Hoffman unequivocally told Falk that Hatch was "not
going to close on the transaction."5 Hoffman testified that after Hatch instructed her on
December 27 to find a house to rent, she told Falk that Hatch was "not going to close on
the transaction."
Q. ... So at this point, this is December 27, 2014, had
you been instructed to start searching for rentals?
A. Yes.
Q. Why was it that you were searching for rentals for the
Hatch[e]s?
A. Because they weren't going to purchase the Falk
home.
Q. How did you know that they weren't going to purchase
the Falk home?
A. Because they told me they couldn't get a loan.
Q. At this point in time that they were searching for
rentals, were they still under contract with the Falks?
A. Yes.
Q. And had it been expressed to Cary Falk at that point
5 In his reply brief, Hatch argues Hoffman exceeded the scope of her authority by telling Falk that
he could not close on the sale of the house. We decline to consider an argument made for the first time
in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549(1992); In
re Marriage of Sacco, 114 Wn.2d 1, 5, 784 P.2d 1266 (1990); Jackson v. Quality Loan Serv. Corn. of
Wash., 186 Wn. App. 838, 845, 347 P.3d 487(2015); Conrad v. Alderwood Manor, 119 Wn. App. 275,
297, 78 P.3d 177(2003).
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that they were not going to close on the transaction?
A. Yes.
Because the uncontroverted evidence shows Hatch repudiated the REPSA
before the scheduled closing date on January 5, 2015, the court did not err in
dismissing the lawsuit to recover the earnest money.
Attorney Fees
The REPSA provides for attorney fees to the substantially prevailing party on
appeal. The REPSA states, in pertinent part:
ATTORNEYS FEES. In any dispute related to this Agreement or the
Property, regardless of the legal theory upon which any claim is based,
the substantially prevailing party shall be entitled to its reasonable
attorneys fees and costs incurred prior to, during and in lieu of any
proceeding (litigation, meditation, arbitration, bankruptcy, etc.) on appeal
and in the collection of any award.
We affirm summary judgment dismissal of the lawsuit to recover the earnest
money. Upon compliance with RAP 18.1, Falk is entitled to an award of reasonable
attorney fees on appeal.
WE CONCUR:
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