Garland Hall, , V. John L. Scott Real Estate

• Court: Court of Appeals of Washington
• Decided: January 17, 2023
• Docket: 83127-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GARLAND HALL, unmarried individual, No. 83127-5-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION JOHN L. SCOTT REAL ESTATE, a Washington corporation; BILL STERN, an individual, and KIM STEVENSON, an individual,

Respondents.

BIRK, J. — Garland Hall sold his Sammamish residence to Sammamish

Town Center Acquisitions LLC (STCA). Bill Stern and Kim Stevenson, through

John L. Scott Inc.,1 were his real estate brokers for the transaction. Hall did not

close on time, leading to a lawsuit by STCA for specific performance requiring him

to close. STCA prevailed in the lawsuit and held Hall responsible for the costs of

moving Hall’s remaining personal property, environmental remediation, and

attorney fees and costs.

Hall filed a lawsuit against John L. Scott, Stern, and Stevenson (collectively

JLS) asserting claims for breach of contract, violation of chapter 18.86 RCW,

misrepresentation, and violation of the Washington Consumer Protection Act

(CPA), chapter 19.86 RCW. The superior court granted JLS’s motion for summary

1 Documents in the record suggest that the name of the company is “John

L. Scott Inc.” so that is how we refer to it.

Citations and pin citations are based on the Westlaw online version of the cited material. No. 83127-5-I/2

judgment, dismissed Hall’s lawsuit, and awarded attorney fees and costs to JLS.

Three of Hall’s claims are properly before this court, breach of duties under chapter

18.86 RCW, violation of the CPA, and fraudulent misrepresentation. We conclude

the trial court properly granted summary judgment to JLS on Hall’s claims.

However, we conclude that on the facts presented the trial court was required to

address segregation of JLS’s attorney fees based on those claims for which

attorney fee recovery was allowed. Fee recovery was allowed only on Hall’s

breach of contract claim, but not his claims for breach of duties under chapter 18.86

RCW, violation of the CPA, and misrepresentation.

We affirm dismissal of Hall’s claims and remand for recalculation of attorney

fees. Because the only claim supporting attorney fee shifting is not before this

court, we decline to award JLS attorney fees on appeal but award costs to JLS

under RAP 14.1(c).

I

Because we review the trial court’s order granting summary judgment to

JLS, we accept Hall’s competent evidence as true and recount the facts in the light

most favorable to Hall. Young v. Key Pharms., Inc., 112 Wn.2d 216, 226, 770 P.2d

182 (1989); Davis v. W. One Auto. Grp., 140 Wn. App. 449, 455 n.1, 166 P.3d 807

(2007) (“On Summary judgment, the court is only allowed to consider competent

evidence.”).

In 2002, Hall acquired a 1.39 acre property located at 22417 Southeast 4th

Street, Sammamish, Washington (Sammamish Property). Bordering the

2 No. 83127-5-I/3

Sammamish Property’s west side was the 2.77 acre Dahners2 family property. To

the east lay Urban and Diana Masset’s 4.393 acre property. After the city of

Sammamish had rezoned the area to build a town center, Hall received certain

offers from interested buyers.

Bill Stern and Kim Stevenson, through John L. Scott, were real estate

brokers in the Sammamish area.

Hall met Stern in person in 2013. Hall asserts that Stern approached him

in relation to the town center project. On April 26, 2013, Stern e-mailed Hall about

a developer who was interested in buying Hall’s property.

On August 2, 2013, a developer, Intracorp,4 sent a letter of intent5 to Stern

for a purchase and sale agreement concerning Hall’s property. Hall signed that

letter of intent the following day. Hall and Stern discussed a counteroffer, and on

August 16, 2013, Stern e-mailed Hall the last page of the letter of intent asking for

three sets of his initials with dates. In the same e-mail, Stern noted that Jason

Dahners signed a letter of intent that afternoon. Hall initialed and dated the

2 The record referred to a number of people that appear to be related, David

and Geri Dahners, Karen Dahners, and Jason and Joyce Dahners. The record is unclear as to property ownership and how many properties are involved, but it appears there are at least two separate properties involved. Because of these ambiguities, we refer to the property generally as the “Dahners family” property and specifically by the name of the individuals in the record. 3 The record indicates that the Massets’ property is either 4.3 acres or 4.39

acres. 4 The record does not indicate the full name of this company and it is

referred to variously as “Intracorp” and “Intercorp.” We refer to it as “Intracorp” for consistency. 5 The letter of intent was from IS Property Investments LLC, which was also

identified as the buyer. But the parties refer to the buyer as Intracorp, so we follow suit.

3 No. 83127-5-I/4

counteroffer to the letter of intent the next day. In the letter of intent, the “Agency

and Commissions” provision stated, “Seller is represented by Broker William M.

Stern of John L. Scott Real Estate. As a commission, Seller agrees to reimburse

Broker the sum of 4% of any proceeds received by Seller.”

In an e-mail dated October 4, 2013, Stern advised Hall to consult an

attorney about selling his property and introduced him to attorney Camille Ralston.

Hall testified at his deposition that he was encouraged to consult an attorney. Hall

consulted with Ralston in 2013 by telephone about reviewing a contract to sell his

property to a developer. Although Hall stated he believed Ralston to be an

excellent attorney, he did not retain Ralston to represent him. On November 13,

2013, Stern sent an e-mail to Hall, the Massets, and Jason Dahners informing

them about the status of negotiations with Intracorp. Stern wrote, “It’s clumsy for

me to tell a prospective buyer that I am representing you when I don’t have

anything ‘official’ in writing.” No agreement was ever reached with Intracorp.

As early as January 2014, there is evidence Stern had learned and

disclosed to a potential buyer that Hall desired to receive at least as much per acre

as the Dahners family in any sale and that Hall desired money upfront to clean up

the property.

On January 8, 2014, Stern sent an e-mail to Hall and several of his

neighbors, including the Dahners family and the Massets. Stern notified the group

that he and Stevenson were meeting with a developer and the developer asked

the brokers to give “a brief tour of the properties in our quadrant after that meeting.”

4 No. 83127-5-I/5

About a month later, Stern and Stevenson discussed among themselves

possible sales to “Orcas Development.” In February 2014 Stern and Stevenson

internally discussed the mechanics of any aggregation of sales of individual

properties, including the danger that Stern and Stevenson could appear to

represent the buyer and the difficulty of facilitating deals between the sellers and

Orcas in the event the sellers each retained their own legal counsel, instead of

retaining one attorney to represent all sellers. In August 2014 Stern and

Stevenson discussed the solution of locating a single lawyer—such as Ralston—

who could represent all the sellers.

On May 13, 2014, Stern sent an e-mail to undisclosed recipients, including

Hall, which made it clear that Stern and Stevenson were working with multiple

potential sellers. Stern stated that the previous December, he and Stevenson had

been approached by a large developer after receiving a referral from the city of

Sammamish.

On September 8, 2014, Stern e-mailed Hall to inform him that he met with

the principal for Orcas, a principal of which formed STCA with Matt Samwick. Stern

acknowledged that he had promised to get back to Hall with the results of the

meeting, and Orcas was interested in purchasing the remaining portions of the

town center that had not been sold.

On September 16, 2014, Stern reviewed a proposed purchase and sale

agreement Hall received from a developer and advised against it. Stern’s stated

reasons for advising against the offer included the unnecessarily favorable

temporal and liability terms for the developer and the developer using “net usable”

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in the description of Hall’s land. Stern also said, apparently in reference to an

agent involved in the proposed transaction, “He wants you to pay him 5% and will

be representing the buyer? I’ve already agreed to represent you and would charge

4%, the same as your neighbors.”

On October 14, 2014, Stern sent an e-mail to Hall to advise that he met with

the principal for Orcas along with its financing source. Stern noted that Orcas

planned approximately three phases of assemblages of the remaining land parcels

available in the town center project area. At that time, Hall’s Sammamish Property

was not included in the first phase and Stern stated he would keep Hall informed

of any additional changes.

On November 4, 2014, Stern sent an e-mail to Hall and the Massets,

regarding Orcas. Stern advised that he and Stevenson had been “working with

Orcas Development for about a year.” He indicated, “they want to proceed,” and

would have offers to present “next week” for “17 to 20 parcels.” Stern told Hall,

“[w]e’ve given them our estimate of what we think the property is worth.”

On November 8, 2014, Stern and Stevenson discussed amongst

themselves edits to a forthcoming e-mail to multiple potential sellers in connection

with negotiations about sale terms with a potential buyer. Stevenson proposed

changes, which she attributed to wanting to avoid implying that they represented

the buyers or implying that they knew the sellers’ individual contract expectations.

By November 9, 2014, at least one extensive e-mail between Stern and

STCA shows that Stern was negotiating the terms on which STCA would acquire

several properties within the proposed town center development. Stern requested

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that an additional paragraph be added regarding a facilitation fee paid by the buyer

to JLS, noting that it would need to be disclosed to the sellers. The e-mail reflects

that counsel for Stern’s company was checking for conflicts of interest. In

contemplating multiple sellers selling to STCA on the same terms, a November 11,

2014 e-mail discusses that sellers would have an opportunity for legal counsel to

review the sale terms, but their counsel could not make changes to the terms.

In another e-mail dated November 11, 2014, Stern suggested to Stevenson

and Samwick the best sequence in which to present the STCA proposal to

potential sellers. Stern hoped to capitalize on his assessment of which potential

sellers would be influenced by their neighbors to maximize participation in the

group selling their properties to STCA. Hall is included among the sellers in the

anticipated sequence, along with the Dahners family and the Massets.

On November 15, 2014, Stevenson sent an e-mail to undisclosed recipients

with Stern copied.6 The e-mail reflected the changes Stern had discussed with

Stevenson about the implications of their e-mails to the group of prospective

sellers. The e-mail disclosed that Stern and Stevenson had been approached by

an interested buyer “nearly a year ago.” The e-mail disclosed that they had “spent

this past week negotiating” with STCA. Stevenson advised that STCA had shown

interest in the properties “for several months” and that their interest covered “25+/-

owners.” This was after Stevenson and Stern had “gone through several

6 The record shows that Hall forwarded this e-mail to his present counsel

Mark Perez on May 9, 2021. In his June 7, 2021 declaration, Hall testified that he had “no specific recollection” of ever receiving Stevenson’s November 15, 2014 e- mail, but reviewed it “because my attorney asked me to.”

7 No. 83127-5-I/8

developers.” The e-mail adverted to the individual sellers having different factors

that were important to them in potential transactions. Stevenson outlined

expectations that a buyer would need to put up cash in a “short time frame,”

structure pricing according to sellers’ “personal desires,” and “front” money so that

sellers could “pay for your attorney to review and approve” the sale agreement.

The e-mail requested the opportunity to meet with the prospective sellers.

On November 22, 2014, Stevenson privately cautioned Stern again on the

nature of the information, such as pricing, he should share with potential sellers.

Stevenson also warned about disclosure regarding Samwick, who she states had

been subject to “disbarment.” She expressed concern that if the sellers were told

too little about Samwick, and later conducted a simple internet search, the sellers

might perceive Stern and Stevenson as lying, ignorant, or trying to cover for

Samwick. Stevenson recommended “not to have anything in writing (in an email)

except for ‘Thank you’s’ and delivery of documents.”

In December 2014, Stern called Hall to discuss the possibility of selling his

Sammamish Property to STCA. Hall told Stern he did not want to sell and did not

have to sell the property.

Nevertheless, Hall met with Stern three times in December 2014. On

December 12, 2014, Hall signed a form 47 seller representation agreement (SRA)

with JLS and a letter of intent (LOI) to sell his property to STCA. The SRA included

a clause under which Hall agreed to pay JLS compensation of four percent of the

sale price for their representation in the sale of the Sammamish Property to STCA.

Hall acknowledged through the SRA that JLS would not market his property

8 No. 83127-5-I/9

through the Northwest Multiple Listing Service and this potentially relinquished an

increased likelihood of receiving a fair market value for the property. The SRA

created an agency relationship between Hall and JLS.

During one of the three meetings, Hall met with Stern and representatives

from STCA. During that meeting, Stern asked Hall if he had any questions that he

would like to ask an STCA representative. According to Hall’s later testimony, he

did not ask any questions because he did “not want to embarrass Bill Stern” and

believed the opportunity to ask was chilled because of a confidentiality

requirement, which was stressed at this meeting. Hall did not feel comfortable

telling STCA about any concerns about selling his property, and so did not ask

STCA whether they were entering any agreement with the Dahners family or

mention any concerns he had about selling the Sammamish Property.

At the third meeting, Hall informed Stern that it would be impossible for Hall

to enter into a real estate contract. Hall was primarily concerned about a knee

injury that was deteriorating and causing him pain. Additionally, Hall was

concerned about timely clearing his property of a volume of personal property,

consisting mostly of audio equipment and collectible cars. Hall did not specifically

discuss these issues because he believed that Stern was already aware of them

and because, he says, Stern took over the conversation.

Hall later testified that at one of these December 2014 meetings, Stern told

Hall that he would be getting the same deal as the Dahners family was getting.

After all three meetings, on December 22, 2014, Hall signed a Residential

Real Estate Purchase and Sale Agreement (PSA), and Addendum No. 1

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(Addendum). Hall signed or initialed every page of the PSA and Addendum. Hall

testified that Stern told him to read the contract and said he could later have an

attorney review it. In section 9.11 of the Addendum there is a blank for the deadline

for seller to accept the PSA which is filled in by hand with a deadline of 5:00 p.m.

on December 22, 2014.

On January 5, 2015, STCA signed and initialed the PSA and Addendum.

Section 2.2 of the Addendum indicated that the “Effective Date” for the PSA was

five business days after mutual acceptance. Hall’s attorney had five business days

after mutual acceptance of the PSA and Addendum before they bound either party.

If Hall’s attorney raised objections by that date, the PSA would be terminated, and

STCA’s earnest money would be returned to STCA, “unless the parties reach[ed]

written agreement within 5 business days thereafter.” If Hall’s attorney approved

or did not timely raise objections, then the PSA and Addendum would be deemed

approved. The PSA advises both parties to seek an attorney.

The Addendum states that “notwithstanding” certain other provisions, the

earnest money could be available to pay for counsel for Hall to review the

agreement. Section 3.5. of the Addendum provided that the closing agent is

authorized by both STCA and Hall to disburse directly to Hall’s attorney up to

$5,000 of the earnest money one time only after the Effective Date, upon written

demand by Hall’s attorney.7

7 Hall disputes the characterization of the Addendum as providing an advance of earnest money for attorney fees, arguing that by the time the earnest money would be released to Hall, the PSA would already be binding.

10 No. 83127-5-I/11

The purchase price for the Sammamish Property was $1,251,000.00. This

amounted to $900,000.00 per acre. The earnest money totaled $5,000.00.

Section 9.7. of the Addendum stated that STCA would pay JLS a facilitation

fee pursuant to a separate written “Facilitator Agreement” and notes that JLS was

not STCA’s agent. Section 9.9. prohibited Hall from disclosing the existence of the

PSA or any of its terms or provisions prior to closing or termination of the PSA.

Section 5.1 of the Addendum provided that starting on the effective date,

Hall warranted and represented to STCA to the best of his knowledge after inquiry

that the Sammamish Property contained no material physical or mechanical

defects. Additionally, Hall warranted and represented that the Sammamish

Property was not in violation of any federal, state, or local law relating to hazardous

materials, and there were no underground storage tanks located on the property

unless otherwise disclosed.

Section 4.1. of the Addendum required Hall to complete a “Form 17”

disclosure statement and deliver it to STCA within five days after the PSA’s

effective date. Hall completed and executed the Form 17 disclosure statement on

December 22, 2014. Hall answered “I don’t know” to all questions in the

environmental section, including questions concerning the existence of soil or

groundwater contamination. Hall testified that Stern spoke with him about the

Form 17 disclosures and advised him to “just be honest,” and Hall completed the

form to the best of his ability. A later amendment set the original closing date to

occur more than two years later, in July 2017.

11 No. 83127-5-I/12

Soon after entering into the PSA, Hall learned from Jason Dahners that the

Dahners family had not sold their property to STCA, and Hall became upset. In

February 2015, Hall contacted an attorney about unwinding the PSA. Nothing in

the record discloses that anything came of this consultation. On February 19,

2015, Karen Dahners rejected a revised offer and ended negotiations with STCA.

Ms. Dahners copied her letter to Stern.

On May 29, 2015, Stern drafted a proposed e-mail to send to Samwick on

Hall’s behalf. Hall had spoken with Stern that morning and had expressed his

dissatisfaction about entering into the PSA. Stern acknowledged that he and Hall

started discussing the potential sale of the Sammamish Property “several years

ago,” and the pair “surmised that [Hall’s] property and the adjoining parcels

belonging to Urban Masset and Jason Dahners would probably end up being sold

to the same buyer and would close at about the same time. We also concluded

that due to their similarities they would probably end up being sold for similar

prices.” The e-mail ended with Hall’s request for modification of the PSA to reflect

these considerations, and proposed a solution to maintain the PSA, but modify the

selling price and closing date to reflect the terms “finally agreed upon” by the

Massets’ and Dahners family’s parcels. Stern sent this draft e-mail to Hall for

approval before submitting it to Samwick, but Hall never responded to Stern and

the record does not disclose the e-mail was sent to STCA.

STCA and JLS entered into a “Facilitator Agreement” more than a year later

in September 2016. Section 1 acknowledged that John L. Scott, acting through its

brokers, assisted STCA in procuring fully executed PSAs for certain real property

12 No. 83127-5-I/13

in Sammamish. The Facilitator Agreement listed specific properties that JLS had

assisted STCA in acquiring, including Hall’s. The Facilitator Agreement stated it

was not an agency agreement and its purpose was to define payment for

compensation only. It stated STCA understood and acknowledged that JLS would

represent either the property owner (seller) or neither party in any transaction.

Hall had extensive difficulty removing his belongings from the property

before closing. Hall also suffered significant medical issues.

Three years after Hall sold the Sammamish Property, the Massets sold their

property and received $1.4 million per acre. The record does not identify the buyer.

Around the same time, the Dahners family sold their property, also to an

unidentified buyer. Hall testified he did not know how much per acre the Dahners

family received, but he claimed he would not be surprised to learn it was for more

per acre than he received. Hall relies on information in a declaration by his

counsel, discussed below, which ostensibly would establish that the Dahners

family sold for a greater price per acre than Hall did. Hall acknowledged that the

real estate market had appreciated between the time he sold and the time the

Dahners family and the Massets sold.

Because Hall did not close timely, STCA filed a lawsuit against Hall on July

18, 2017, for specific performance to complete the sale of the Sammamish

Property. Prior to closing, STCA discovered both an underground storage tank

and the need for environmental remediation. Hall and JLS agree the court ordered

specific performance, together with payment of costs associated with cleanup of

the property and litigation expenses totaling about $600,000.

13 No. 83127-5-I/14

On September 28, 2020, Hall filed his first amended complaint for damages

against JLS. Hall generally asserted that JLS breached the duty of loyalty an agent

owes to a principal by purporting to represent Hall while simultaneously serving

the interests of STCA. Hall asserted claims for breach of contract, breach of JLS’s

duties as real estate professionals under chapter 18.86 RCW, misrepresentation,

and violation of the CPA. Hall’s original complaint described his misrepresentation

claim as one for “negligent misrepresentation.” In the amended complaint, he

recharacterized this claim as one for “misrepresentation,” without specifying

whether he asserted a negligent or intentional misrepresentation claim.

Hall presented an expert, Ruth deMille. In her deposition testimony, deMille

did not testify to any particular standard of care or to any breach of an applicable

standard of care by JLS. However, deMille testified that Stern should have (1)

given Hall more time to review the PSA, (2) gotten Hall more than $5,000.00 in

earnest money, and (3) not allowed Hall to make improvident warranties regarding

On June 18, 2021, the superior court dismissed all of Hall’s claims on

summary judgment. Hall appeals.

II

A party seeking summary judgment bears the initial burden to show the

absence of a genuine issue of material fact. Young, 112 Wn.2d at 225. This

burden may be met by showing an absence of evidence to support the nonmoving

party’s burden of proof at trial. Id. at 225 n.1. Then, the burden shifts to the

nonmoving party to show the existence of a genuine issue of material fact. Id. at

14 No. 83127-5-I/15

225. An order granting summary judgment is reviewed de novo. Id. at 226. The

court views the evidence in the light most favorable to the nonmoving party, in this

case, Hall. Id.

A

Hall’s amended complaint asserted the following claims against JLS:

breach of contract, breach of duties under chapter 18.86 RCW, misrepresentation,

and violations of the Washington CPA. Hall does not brief his breach of contract

claim on appeal, so the dismissal of that claim is not before this court. RAP 12.1(a);

Wash. Pro. Real Estate, LLC v. Young, 163 Wn. App. 800, 818 n.3, 260 P.3d 991

(2011) (declining to decide a case on the basis of issues that were not set forth in

the parties’ briefs). Hall does not argue on appeal that we should find he has

presented evidence supporting a claim for negligent misrepresentation, but rather

argues exclusively that he presented evidence supporting fraudulent, i.e.

intentional, misrepresentation.

Hall asserts a claim for the first time on appeal that JLS engaged in the

unauthorized practice of law. Hall argues that JLS engaged in the unauthorized

practice of law when allegedly giving legal advice on the terms of the September

16, 2014 offer and should be estopped from disclaiming that the standard of care

of an attorney applied when JLS reviewed the PSA with Hall. Generally, issues

not raised in the trial court may not be raised on appeal. Roberson v. Perez, 156

Wn.2d 33, 39, 123 P.3d 844 (2005). This court may refuse to review any claim of

error which was not raised in the trial court. RAP 2.5(a). The decision to do so is

discretionary. Roberson, 156 Wn.2d at 39.

15 No. 83127-5-I/16

The superior court record contains few references to Stern’s alleged

unauthorized practice of law. In a superior court filing, Hall briefly mentioned that

Stern’s “less than accurate advice” concerning a previous developer’s offer was

“perhaps contrary [to] the laws prohibiting the unauthorized practice of law.”

However, the claim is absent from Hall’s amended complaint, and it is unrelated to

the elements of the other claims Hall asserted. Other than citing to Cultum v.

Heritage House Realtors, Inc. for the general proposition that real estate brokers

carry additional duties when engaged in the practice of law, Hall cited to no facts

or legal authority in the superior court to support the argument that JLS owed Hall

an attorney’s standard of care. 103 Wn.2d 623, 627, 694 P.2d 630 (1985).

Because Hall did not sufficiently raise a claim based on the unauthorized practice

of law in the superior court, we decline to address that claim.

The same is true of Hall’s claim asserted for the first time on appeal that

JLS breached a common law fiduciary duty to Hall. Hall did not plead a common

law breach of fiduciary duty claim below, and he did not seek to assert it through

any other means such as in his response to JLS’s motion for summary judgment,

so it is not properly before this court. See Pappas v. Hershberger, 85 Wn.2d 152,

154, 530 P.2d 642 (1975) (declining to consider an issue raised for the first time

on appeal that was not properly raised or reserved in either the superior court or

Court of Appeals).

Accordingly, we consider three claims to be properly before us on appeal:

breach of duties under chapter 18.86 RCW, violation of the Washington CPA, and

fraudulent misrepresentation. Because we conclude Hall fails to overcome

16 No. 83127-5-I/17

summary judgment on any of these claims, we need not and decline to reach Hall’s

arguments that the superior court erred in applying the independent duty doctrine

or that he presented a question of fact on mitigation of damages. See Hall v. Am.

Nat. Plastics, Inc., 73 Wn.2d 203, 205, 437 P.2d 693 (1968) (“[C]ourts of review

are not obliged to decide all issues raised by the parties, but only those which are

determinative.”).

B

Both parties’ briefing and evidence failed to adhere to CR 56 in ways that

have created unnecessary difficulties for the superior court and this court. In

deciding a summary judgment motion, a court does not weigh the evidence, but

rather asks if the evidence shows the existence of a genuine issue of material fact

which must be resolved by a trier of fact at trial. See Hungerford v. Dep’t of Corr.,

135 Wn. App. 240, 250, 139 P.3d 1131 (2006). In seeking summary judgment, it

was JLS’s initial burden to show that there were no genuine issues of material fact

requiring a trial to resolve even when taking the evidence in the light most favorable

to Hall. Young, 112 Wn.2d at 225-26.

JLS’s summary judgment briefing in the superior court and its briefing on

appeal largely fail to meet its initial burden to demonstrate that there were no

genuine issues of material fact requiring a superior court to grant summary

judgment. Rather than showing that Hall’s evidence fails to support Hall’s claims,

JLS largely relies on its own self-serving evidence, such as declaration testimony

by Stern, to the effect that Stern contends he satisfied his duties to Hall. Argument

17 No. 83127-5-I/18

based on the moving party’s own self-serving version of events is particularly

unhelpful to the court in assessing whether the nonmoving party’s evidence is

sufficient to require a jury trial.

In an appropriate case, a court may properly refuse summary judgment

when the moving party fails to make an initial showing that there is not a genuine

issue of material fact requiring trial. Hash v. Child.’s Orthopedic Hosp. & Med. Ctr.,

110 Wn.2d 912, 915-16, 757 P.2d 507 (1988); White v. Kent Med. Ctr., Inc., 61

Wn. App. 163, 170, 810 P.2d 4 (1991). Nevertheless, despite the fact JLS’s

briefing consistently portrays the evidence in the light most favorable to itself,

rather than as we must take it in that most favorable to Hall, we conclude that JLS

marginally met its threshold burden on summary judgment. JLS meeting its burden

shifts the burden to Hall to set forth facts that “would be admissible in evidence”

showing “ ‘that there is a genuine issue for trial.’ ” Young, 112 Wn.2d at 225-26

(quoting CR 56(e)).

In opposition to JLS’s motion for summary judgment, Hall’s attorney, Mark

Perez, submitted a declaration with 35 exhibits attached. Perez’s declaration was

not limited to attaching exhibits and describing relevant procedural history. Rather,

for certain substantive factual assertions noted below, Hall relies on Perez’s sworn

statements that they are true.

An attorney’s affidavit may be considered in ruling on a motion for summary

judgment to the extent that it is based on testimonial knowledge. Am. Linen Supply

Co. v. Nursing Home Bldg. Corp., 15 Wn. App. 757, 763, 551 P.2d 1038 (1976).

18 No. 83127-5-I/19

An attorney’s affidavit is entitled to the same consideration as any other affidavit

based upon testimonial knowledge. Id. To the extent that the affidavit contains

the attorney’s conclusions and other surplusage, it is to be disregarded. Id.

However, the rest of the affidavit can appropriately be considered. Id.

An attorney’s affidavit that merely relates certain factual assertions that

have been made to him by a client constitutes hearsay and does not set forth facts

that would be admissible in evidence. See Welling v. Mount Si Bowl, Inc., 79

Wn.2d 485, 489, 487 P.2d 620 (1971). When affidavits are offered to support the

position of a party at summary judgment, the affidavits must conform to what the

affiant would be permitted to testify to at trial. Blomster v. Nordstrom, Inc., 103

Wn. App. 252, 260, 11 P.3d 883 (2000). The court should not consider conclusory

statements made by either party. Id. An affidavit that states beliefs formed on the

basis of hearsay is not made on personal knowledge or admissible in evidence as

required by CR 56(e) and need not be considered in a summary judgment

proceeding. See State v. Evans Campaign Comm., 86 Wn.2d 503, 506-07, 546

P.2d 75 (1976).

Perez’s declaration contains several conclusory and argumentative

assertions concerning his personal interpretation of the exhibits attached.

Regarding exhibit 18, Perez asserts—not Hall—that “Hall did not receive this

email.” Without referencing any specific exhibit, Perez asserts that “[i]n [his] review

of the document produced by the Defendants, I can find no evidence that

Defendants advised the Plaintiff to have Ralston review STCA’s LOI or PSA.”

Again without referencing any specific exhibit, Perez cites to a “May 13 email”—

19 No. 83127-5-I/20

which we assume must be the May 13, 2014 e-mail from Stern mentioned above—

in which he asserts JLS was approached by an unidentified developer, and states,

“Based, on this information, I believe the unidentified developer referred to in the

2014 Defendants’ emails, from January through September refer to Orcas.”

Regarding exhibit 28, Perez concludes, based on a group e-mail from Ralston to

all the sellers who had opted for representation, that all of the prospective sellers

who were part of another developer’s assemblage that had retained attorney

Ralston for that transaction also retained her to review STCA’s offer. When

discussing exhibit 35, Perez notes, “In my review of the documents produced by

[JLS], I found an email exchange involving [JLS] and STCA, in which both sides

acknowledge the confusing terms as to the attorney review period and release of

earnest money.”

As written, these statements are improper in an attorney’s declaration

submitted in opposition to a motion for summary judgment. They make

conclusions or opinions on the exhibits, and in some cases purport to stand in for

evidence that is simply not provided. These statements are not appropriately

viewed as admissible evidence under CR 56(e) and may be disregarded on that

basis. We nevertheless conclude that even if we were to consider these

statements together with the balance of Hall’s evidence, the superior court

correctly dismissed Hall’s claims on summary judgment to the extent those claims

are properly before us.

20 No. 83127-5-I/21

III

Hall asserts that JLS violated chapter 18.86 RCW, which governs real

estate brokerage relationships.

Brokers owe duties under RCW 18.86.030 to all parties to whom the broker

renders real estate brokerage services. “Real estate brokerage services” are

defined as “the rendering of services for which a real estate license is required

under chapter 18.85 RCW.” RCW 18.86.010(11). Chapter 18.85 RCW, which

governs real estate licensure, defines “real estate brokerage services” to mean

“any of the following services offered or rendered directly or indirectly to another,

or on behalf of another for compensation or the promise or expectation of

compensation.” RCW 18.85.011(17). These “services” include negotiating or

offering to negotiate, either directly or indirectly, the purchase or sale of real estate

and advising buyers or sellers in connection with a real estate transaction. RCW

18.85.011(17)(b), (e). While the statute explains that the duties are not waivable,

they are owed only when a broker is acting for “ ‘compensation or the promise or

expectation of compensation.’ ” Beauregard v. Riley, 9 Wn. App. 2d 248, 259, 443

P.3d 827 (2019) (quoting RCW 18.85.011(17)).

A broker who performs real estate brokerage services for a buyer is a

buyer’s agent unless the broker’s firm has appointed the broker to represent the

seller pursuant to a written agency agreement between the firm and the seller, in

which case the broker is a seller’s agent. RCW 18.86.020(1)(a).

21 No. 83127-5-I/22

A seller’s agent owes several, nonwaivable duties to all parties under RCW

18.86.030(1) and RCW 18.86.040(1). The RCW 18.86.030(1) duties include the

duty to (a) exercise reasonable skill and care, (b) deal honestly and in good faith,

and (d) disclose all existing material facts known by the broker and not apparent

or readily ascertainable to a party. The RCW 18.86.040 duties include (a)

exhibiting loyalty to the seller by taking no action that is adverse or detrimental to

the seller’s interest in a transaction, (b) timely disclosing any conflicts of interest,

and (c) advising the seller to seek expert advice on matters relating to the

transaction that are beyond the agent’s expertise. The duties imposed under

chapter 18.86 RCW are defined as statutory duties and not fiduciary duties. RCW

18.86.110.

Hall argues that deMille’s testimony creates a genuine issue of material fact

on the issue of breach under RCW 18.86.030(1)(a) and RCW 18.86.030(1)(d). We

disagree.

For his claim under RCW 18.86.030(1)(a), Hall was required to show that

he was damaged by a failure by JLS to exercise reasonable care and skill.

Before Hall and JLS entered into the SRA on December 12, 2014, the

brokers’ duties owed to Hall under RCW 18.86.030 potentially arose as early as

September 16, 2014. On September 16, 2014, Stern reviewed and advised Hall

on a contract sent from another developer, confirmed to Hall that he agreed to

represent Hall, and confirmed that he would charge Hall a four percent

22 No. 83127-5-I/23

commission. The parties do not dispute the brokers’ agency relationship arose

when Hall entered into the SRA for the STCA transaction. At that time, Hall did

not ask any questions of Stern about the contract before signing it or even after

signing the amendment to the PSA almost a month later. Hall testified Stern

advised him to retain counsel to review the terms of an agreement to sell the

Sammamish Property. Hall was clear that Stern gave him this advice at least once

in 2012. Hall additionally testified Stern gave him this advice with respect to the

PSA with STCA in 2014.

Hall’s expert, deMille, testified that Stern should have given Hall more time

to review the PSA. Hall testified that he read the PSA hurriedly. Hall admitted that

between the time he signed on December 22, 2014, and the day of his deposition

on May 5, 2021, he did not go back and read that PSA more thoroughly. There is

no evidence supporting a conclusion other than that Stern advised Hall to retain

counsel and read the PSA. There is also no evidence that Hall lacked adequate

time to read the PSA if he wished to do so when it was presented to him on

December 22, 2014. After he signed the PSA, Hall had two weeks in which he

could have reviewed the PSA between his signing on December 22, 2014, and

STCA’s signing on January 5, 2015, and as well Hall’s further signing the

amendment to the PSA on January 17, 2015. Although deMille is evidently critical

of this timeline, she does not articulate in what way it violates any applicable

standard of care. Hall’s evidence does not show that JLS failed to exercise

reasonable care and skill with respect to the amount of time which Hall was given

in which to review the PSA.

23 No. 83127-5-I/24

In her testimony, deMille opined that Stern should have asked for $10,000

in earnest money. The parties dispute the intent of the PSA’s providing for $5,000

in earnest money. Stern maintains that the earnest money was intended to permit

Hall to cover the expense of hiring counsel to review the document. Hall counters

that he needed the earnest money as a means to address a foreclosure of one of

his other properties. Nevertheless, we take Hall’s reliance on deMille’s testimony

as suggesting the inference that if Stern had obtained a greater amount of earnest

money, Hall could have retained counsel to review the PSA. However, this dispute

is not material to any issue that needs to be decided, because it is undisputed that

Hall received the earnest money and did not use it to retain counsel. Instead of

using the $5,000 he received from STCA to hire an attorney to review the PSA,

Hall funded other expenses and said he did not have enough money to pay for an

attorney. Stern could not have known that Hall needed more earnest money to

hire an attorney if Hall did not use the $5,000 he already received to try and retain

one. Hall testified that he did not specifically remember telling Stern that he did

not have enough money to hire an attorney. Finally, Hall presents no evidence

that STCA or any buyer would have agreed to higher earnest money.

Additionally, deMille testified that a broker is obligated to present the offer

as written and walk through the offer in its entirety with the client so they have a

full understanding of it. She also testified that the duty of a broker with regard to

complicated provisions in a contract is to have the client have those provisions

reviewed by an attorney so the client fully understands them. And, deMille

acknowledged that the earnest money was earmarked for obtaining counsel.

24 No. 83127-5-I/25

There can be no dispute that Stern advised Hall to seek counsel about the PSA on

at least one occasion and possibly more, Hall had time in which to do so after

receiving the PSA, and Hall received $5,000 in earnest money that he did not use

to retain counsel. This record does not support a conclusion that JLS failed to

exercise reasonable care and skill with respect to referring Hall to provisions in the

PSA requiring attorney review.

Finally, deMille testified Stern should have cautioned Hall against the

improvident warranties regarding the Sammamish Property. Hall was free to ask

Stern questions about the provisions of the PSA, including the warranties section,

but did not do so. As shown when Hall asked Stern for advice on another contract

he received in September 2014, Stern provided detailed advice on particular

sections and clauses of that agreement. For the PSA with STCA, however, Hall

asked no questions and signed the PSA after only hurriedly reading it. Hall

acknowledged that Stern advised him to complete the Form 17 disclosure form

honestly, and Hall completed Form 17 to the best of his ability. The record does

not support a conclusion that Stern failed to exercise reasonable care and skill with

respect to explaining the warranties provision in the PSA.

Hall implies that if he had been advised against making the warranties

concerning the condition of the Sammamish Property, he would not have entered

into the PSA with STCA. But he presents no evidence allowing a determination of

any amount of damages incurred by entering into the PSA as opposed to not doing

so. Hall presents no evidence of the price any willing buyer would have paid for

the Sammamish Property subject to the need later discovered for substantial

25 No. 83127-5-I/26

environmental remediation. The record does not support a conclusion that Hall

could have realized any particular price per acre different from the price he

received under the PSA, let alone the price received three years later by neighbors

selling different properties having different conditions affecting (or not affecting)

them.

Hall presented no evidence supporting a genuine issue of material fact on

whether JLS breached the duty of RCW 18.86.030(1)(a). On this claim, summary

judgment was appropriate.

Hall argues that pursuant to RCW 18.86.030(d), JLS was obligated to

disclose as a “material fact[]” that was not “readily ascertainable” Samwick’s

“disbarment” in Oregon for committing financial fraud. Expert deMille testified that

given Samwick’s credibility and business practice issues in Oregon, JLS pursuing

STCA as the buyer gave her concern.

If possible, we must give effect to the plain meaning of a statute as an

expression of legislative intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d

1003 (2014). This plain meaning is derived from the context of the entire act as

well as any related statutes which disclose legislative intent about the provision in

question. Id. We need not consider outside sources if a statute is unambiguous.

Id.

A provision is ambiguous if it remains susceptible to more than one

reasonable interpretation. Tingey v. Haisch, 159 Wn.2d 652, 657, 152 P.3d 1020

26 No. 83127-5-I/27

(2007). When a term has a well accepted, ordinary meaning, a regular dictionary

may be consulted to determine the term’s definition. Id. at 658.

A “material fact” means information that substantially adversely affects the

value of the property or a party’s ability to perform its obligations in a real estate

transaction, or operates to materially impair or defeat the purpose of the

transaction. RCW 18.86.010(9).

The phrase “readily ascertainable” used in RCW 18.86.030(d) is undefined.

Webster’s defines “readily” to mean “with fairly quick efficiency : without needless

loss of time : reasonably fast” or “with a fair degree of ease : without much

difficulty : with facility.” W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1889

(2002). “Ascertain” means to “find out or learn for a certainty (as by examination

or investigation) : make sure of : discover.” W EBSTER’S at 126. Therefore, if a

party could discover information quickly or easily, that information is “readily

ascertainable”.

Information concerning Samwick’s “disbarment” was both immaterial to

Hall’s transaction with STCA and readily ascertainable. Hall presents no evidence

of the circumstances of Samwick’s Oregon “disbarment” nor any related

dishonesty by Samwick towards Hall or in Hall’s transaction with STCA. This

prevents any conclusion that the “disbarment” has any impact on the value of the

Sammamish Property, any party’s performance of their obligations under the PSA,

or the purpose of transferring the property from Hall to STCA. This makes the

“disbarment” immaterial under RCW 18.86.010(9). Further, as Stern and

Stevenson acknowledged in their November 22, 2014 e-mail exchange, there were

27 No. 83127-5-I/28

at least 10 pages in Google’s search results concerning Samwick’s “disbarment”.

Hall could have easily found that information about Samwick through the internet.

Additionally, there is no evidence in the record to support Hall’s claim that Stern

and Stevenson encouraged Samwick to form STCA because there would be little

information about the company on the internet. Rather, the November 22, 2014

e-mail exchange between Stern and Stevenson merely acknowledges that there

is not much information on Orcas and no information on STCA on the internet, not

that Samwick should form STCA to attempt to hide prior misconduct.

Hall presented no evidence supporting a genuine issue of material fact on

whether JLS breached the duty of RCW 18.86.030(1)(d). On this claim, summary

C

Hall argues that deMille’s testimony creates a genuine issue of material fact

on the issue of breach under RCW 18.86.040(1)(a) and RCW 18.86.040(1)(b).

JLS argues that the communications Hall relies on for his argument

concerning the duty of loyalty occurred before JLS and Hall executed the SRA and

therefore before JLS’s duty of loyalty as Hall’s agent arose. We agree.

JLS’s duty of loyalty to Hall under RCW 18.86.040(1)(a) arose on December

12, 2014, when Hall signed the SRA, which was later fully executed. In her

testimony, deMille admitted that the communications between Stern and STCA on

how to approach a particular seller, Hall, occurred before Hall signed the SRA with

JLS and Stern. And deMille testified that, before the SRA was signed, an “implied

28 No. 83127-5-I/29

agency” relationship arose between Stern and Hall. She reasoned that during the

interim period between Stern first meeting with Hall and Hall signing the SRA,

Stern’s communications and actions would lead Hall to believe that Stern was

ultimately going to be his agent. Although the common law applies to JLS and Hall

to the extent not displaced by statute pursuant to RCW 18.86.110, any “implied

agency” arising under chapter 18.86 RCW is unsupported by statute and case law.

Here, JLS’s discussions with STCA prior to the SRA’s execution do not support a

breach of the statutory duties. Moreover, Stern and Stevenson disclosed that they

were discussing terms with potential developer buyers with the intent of engaging

multiple sellers, as they would obviously need to be in order to carry out the stated

intention of selling properties in aggregations to developers vying for the town

center project.

Stern communicated directly to Hall about their relationship on two

occasions before the SRA’s execution. On November 13, 2013, in an e-mail to

Hall, the Massets, and Jason Dahners, Stern stated, “It’s clumsy for me to tell a

prospective buyer that I am representing you when I don’t have anything ‘official’

in writing.” The next instance occurred almost a year later, in an e-mail on

September 16, 2014, when Hall asked Stern for his thoughts on an offer he

received from another developer. Stern wrote, “He wants you to pay him 5% and

will be representing the buyer? I’ve already agreed to represent you and would

charge 4%, the same as your neighbors.” Stern’s comments made clear that their

discussions concerned Stern’s future representation of Hall, not that Stern actually

represented Hall at those times in 2013 and 2014. Additionally, it was clear in the

29 No. 83127-5-I/30

November 13, 2013 e-mail that Stern noted that he would need something in

writing before he could say that he is Hall’s representative to potential buyers.

Stern’s representation of Hall began with the SRA’s execution on December 12,

2014.

Much of the communication between Stern and Hall since they met in

person in 2013 up until the SRA’s execution in late 2014 was initiated by Stern,

and left no doubt about Stern’s actions towards properties within the town center

development area. In several e-mails within that time period, Stern kept Hall

apprised of ongoing discussions with various developers interested in the town

center project. On April 26, 2013, Stern contacted Hall after being asked to do so

by a developer interested in presenting an offer on Hall’s property. On January 8,

2014, Stern sent an e-mail to Hall and several of his neighbors, including Jason

and Karen Dahners and the Massets. Stern notified the group that he and

Stevenson were meeting with a developer and the developer asked the brokers to

give “a brief tour of the properties in our quadrant after that meeting.” The city of

Sammamish referred a “large developer” to Stern and Stevenson, who had been

approached by the developer the previous December. On September 8, 2014,

Stern e-mailed Hall to inform him that he met with the principal for Orcas, had

promised to get back to Hall with the results, and that Orcas was interested in

purchasing the remaining portions of the town center that had not been sold. It is

clear that Stern had other communication with Hall, but the content of those

conversations is not in the record.

30 No. 83127-5-I/31

Stern communicated with Hall at his own initiation before any agency or

implied agency relationship arose in December 2014. Moreover, Stern

communicated his intention to negotiate sales of multiple properties to interested

developers. This activity, occurring before an agency relationship was established

and with disclosure of Stern’s intentions, does not support a conclusion that Stern

breached a duty of loyalty to Hall. Hall presented no genuine issue of material fact

that JLS and the Brokers breached their duty under RCW 18.86.040(1)(a). On this

claim, summary judgment was appropriate.

Hall argues that JLS breached its duty under RCW 18.86.040(1)(b) when

they failed to disclose a conflict of interest. We disagree.

Stern disclosed his working relationship with Orcas and/or STCA to Hall

several times. On September 8, 2014, Stern e-mailed Hall to inform him that he

met with the principal for Orcas, and it was interested in purchasing the remaining

portions of the town center that had not been sold. On October 14, Stern e-mailed

Hall to inform him that he met with the principal of Orcas and its financing source.

On November 4, 2014, over a month before Hall signed the SRA, LOI, and PSA,

Stern e-mailed Hall and the Massets, and reminded them that he and Stevenson

had been working with Orcas for about a year. On November 15, 2014, Stevenson

e-mailed Hall and reminded him that she and Stern had spent the past week

negotiating with Samwick. Stevenson noted that Samwick was a principal of

STCA, and that STCA was formed as a result of several meetings and tours the

brokers gave Samwick and Orcas.

31 No. 83127-5-I/32

At least once a month for three months before Hall signed the SRA, LOI,

and PSA, Stern and Stevenson notified Hall that they were meeting with

representatives from a developer to broker sales of property within the town center

project. Hall testified that he received the November 15, 2014 e-mail from Stern

but had no specific recollection that he reviewed that e-mail. Hall also testified that

he received about six or seven e-mails from Stern stating that Stern would be

showing developers or engineers around Hall’s or his neighbors’ properties.

Several of these e-mails specifically named Orcas or STCA as the developer Stern

was meeting with. To the extent there was one, Hall cannot reasonably argue that

JLS failed to disclose a conflict of interest with STCA when Hall received several

e-mails months before the SRA, LOI, and PSA were executed that detailed the

work Stern and Stevenson were doing with STCA.

Hall presented no genuine issue of material fact that JLS breached its duty

under RCW 18.86.040(1)(b). On this claim, summary judgment was appropriate.

IV

Under the CPA, unfair methods of competition and unfair or deceptive acts

or practices are unlawful. RCW 19.86.020. To prevail on a CPA claim, the plaintiff

must prove (1) an unfair or deceptive act or practice, (2) occurring in trade or

commerce, (3) public interest impact, (4) injury to plaintiff in his or her business or

property, and (5) causation. Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 782, 295

P.3d 1179 (2013). A claim under the CPA may be predicated on a per se violation

of the statute, an act or practice that has the capacity to deceive substantial

portions of the public, or an unfair or deceptive act or practice not regulated by

32 No. 83127-5-I/33

statute but in violation of public interest. Id. at 787. We conclude that Hall fails to

show causation under the CPA, and we do not reach any other elements of this

claim.

JLS argues that there is no evidence JLS caused Hall’s claimed damages

as JLS was not responsible for Hall’s performance of his contractual obligations.

Hall must show that any breach of duty was the proximate cause of his claimed

injury. Boguch v. Landover Corp., 153 Wn. App. 595, 609, 224 P.3d 795 (2009).

At issue is the cause in fact component of proximate cause. See Beauregard, 9

Wn. App. 2d at 255-56. To show cause in fact, the plaintiff must show that “but

for” the defendant’s breach, the plaintiff’s alleged injury would not have occurred.

Id. at 256.

In Beauregard, the court held that the plaintiffs failed to establish that the

defendant’s actions were the proximate cause of their claimed injuries and affirmed

the dismissal of those claims on summary judgment. Id. at 250. The Beauregards

sued their former real estate agent, Riley, for negligence, breach of statutory real

estate broker duties, and violations of the CPA. Id. The court noted that while the

plaintiffs alleged 10 ways Riley breached her duty as their agent, they failed to

identify a prospective buyer who would have been willing to purchase the

Beauregards’ property within their desired price range but for Riley’s negligence.

Id. at 257. The court concluded that the Beauregards failed to establish proximate

causation, an essential element to their negligence, statutory duty, and CPA

claims. Id. at 258.

33 No. 83127-5-I/34

Hall’s case is similar to Beauregard. Hall offers no evidence that he was

likely to obtain any price from a willing buyer other than the one he received, let

alone the same price per acre as the Dahners family or the Massets. When Hall

asked Stern to review an earlier offer from another buyer, the price was for $1

million, approximately a quarter of a million less than the amount STCA offered.

There is no evidence that Hall at any time could have received a higher price than

the one STCA offered. Hall’s comparison of the sale price for the Sammamish

Property to his former Sammamish neighbors’ property sales is unsupported by

competent evidence. Hall admitted that the real estate market appreciated

significantly in the two to three years following his PSA. Hall fails to put forth

evidence that would demonstrate that but for JLS’s alleged misconduct he would

likely have sold his property on terms similar to those on which his neighbors sold,

in similar market conditions, or without incurring costs associated with his

property’s environmental condition.

Additionally, Hall had time to review the PSA. When a contract is plain and

unambiguous, a person who has signed without reading it is nevertheless bound

by its terms so long as there was reasonable opportunity to examine the contract

in as great a detail as the person signing cared, and the contracting party has failed

to do so for personal reasons. McCorkle v. Hall, 56 Wn. App. 80, 83, 782 P.2d

574 (1989). Hall had almost a month between the time he signed the PSA and

Addendum until the time he signed the Amendment on January 17, 2015. Hall

received $5,000 in earnest money from STCA, but instead of using that money to

hire an attorney to review the PSA during a window afforded to him to terminate

34 No. 83127-5-I/35

the contract, Hall spent those funds on other expenses. Hall’s own actions, not

JLS’s, caused any damages he incurred from lost personal property,

environmental remediation reimbursement, and litigation expenses.

Hall does not present evidence that would support a conclusion that any

injury he incurred was the result of acts or omissions by JLS. The superior court

properly granted JLS summary judgment on Hall’s CPA claim.

V

The last claim before us is Hall’s claim that JLS engaged in fraudulent

misrepresentations. Hall’s original complaint characterized this claim as one for

negligent misrepresentation. In his amended complaint, Hall characterized this

claim as “misrepresentation,” without further specification. Hall is clear in his

appellate briefing, however, that he now rests on a claim of fraudulent

misrepresentation.

Although never acknowledged by Hall, to establish fraudulent

misrepresentation, he must prove nine elements by clear, cogent, and convincing

evidence: (1) representation of an existing fact, (2) the materiality of the

representation, (3) the falsity of the representation, (4) the speaker’s knowledge of

the falsity of the representation or ignorance of its truth, (5) the speaker's intent

that the listener rely on the false representation, (6) the listener’s ignorance of its

falsity, (7) the listener’s reliance on the false representation, (8) the listener’s right

to rely on the representation, and (9) damage from reliance on the false

representation. Baertschi v. Jordan, 68 Wn.2d 478, 482, 413 P.2d 657 (1966).

We previously found that an element of fraudulent misrepresentation refers to a

35 No. 83127-5-I/36

plaintiff’s “reasonable reliance” on the representation. See Hawkins v. Empres

Healthcare Mgmt., LLC, 193 Wn. App. 84, 100, 371 P.3d 84 (2016). An omission

may constitute a misrepresentation if the party had a duty to disclose information

and breached this duty. Landstar Inway Inc. v. Samrow, 181 Wn. App. 109, 124,

325 P.3d 327 (2014).

Hall’s evidence fails to show the reliance element. It was not reasonable

for Hall to rely on any representation that Stern was not working with or speaking

to STCA during this transaction. In three e-mails that predated Hall’s several

meetings with Stern in December 2014, Stern explicitly stated that he had been

working with STCA for about a year and in that time had had over a dozen

meetings and town center tours with their representatives. These e-mails leave

no doubt about the fact that Stern was working to arrange the sales of many

properties to a developer in connection with the Sammamish town center project.

Moreover, one of the three meetings Hall attended with Stern in December 2014

was one that Stern had arranged for him with STCA, the very party Hall now

contends he did not appreciate Stern was working with on the town center project.

Hall offers virtually no substantive rebuttal to the fact Stern disclosed the

very matters he alleges were suppressed other than to testify in a declaration

prepared years later and in the weeks preceding the summary judgment hearing

that he did not recall receiving one of Stern’s comprehensive e-mails. But even

accepting Hall’s declaration as true, that Hall may have neglected to read Stern’s

disclosure does not alter the fact Stern did disclose the nature of his efforts related

to the town center project, and he did it well before Hall nevertheless agreed to the

36 No. 83127-5-I/37

PSA Stern later presented. Finally, it was not reasonable for Hall to rely on any

representation that Hall would receive the same terms or price per acre as the

Dahners family. Hall admitted that no such terms were present in the PSA, he

points to no evidence that would support him believing the PSA would nevertheless

provide for such guaranties, and he did not ask that they be added. Hall

nevertheless signed the PSA. On May 29, 2015, Stern drafted an e-mail about

Hall’s concerns that he was not getting the same price as the Massets and the

Dahners family, and Stern sought Hall’s permission to send the e-mail to Samwick.

Hall never responded.

Because Hall cannot establish the reliance element, Hall’s fraudulent

misrepresentation claim fails as a matter of law. Further, even if Hall were to

characterize his claim as one for negligent misrepresentation, his failure to offer

evidence supporting the reliance element would foreclose that claim as well. Laws.

Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002) (elements of

negligent misrepresentation).

VI

Last, Hall assigns error to the superior court award to JLS of reasonable

attorney fees and costs pursuant to the prevailing party fee provision in the SRA.

Hall argues that the superior court erred when it awarded JLS all of its

attorney fees pursuant to the SRA without a segregation analysis, relying on case

law establishing that the claims Hall asserted are subject to segregation of

prevailing party attorney fees in light of the language in the parties’ contract. We

37 No. 83127-5-I/38

agree. The superior court should have required JLS to analyze the segregation of

fees associated with certain claims outside the scope of the prevailing party

provision in the contract.

Generally, parties bear their own attorney fees unless otherwise provided

by contract, statute, or recognized ground in equity. Mellor v. Chamberlin, 100

Wn.2d 643, 649, 673 P.2d 610 (1983). Whether a party is entitled to attorney fees

is an issue of law that this court reviews de novo. Little v. King, 147 Wn. App. 883,

890, 198 P.3d 525 (2008).

When an action in tort is based on a contract containing an attorney fee

provision, the prevailing party is entitled to attorney fees. Douglas v. Visser, 173

Wn. App. 823, 835, 295 P.3d 800 (2013). Under Washington law, for the purposes

of a contractual attorney fee provision such as the one at issue in this case, an

action is on a contract if the action arose out of the contract and if the contract is

central to the dispute. Seattle First Nat. Bank v. Wash. Ins. Guar. Ass’n, 116

Wn.2d 398, 413, 804 P.2d 1263 (1991). Where a party alleges a breach of a duty

imposed by a source other than the contract, the action is not on a contract, even

if the duty would not exist in the absence of a contractual relationship. Boguch,

153 Wn. App. at 600. A defendant who successfully defends may be a prevailing

party. Mike’s Painting, Inc. v. Carter Welsh, Inc., 95 Wn. App. 64, 68, 975 P.2d

532 (1999). The reasonableness of attorney fees is a factual question depending

upon circumstances of a given case, and the trial court has broad discretion in

fixing attorney fees. Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 169, 795

P.2d 1143 (1990).

38 No. 83127-5-I/39

In Edmonds, the court upheld an award of attorney fees to Edmonds who

sued her realtor for breach of fiduciary duty, among other things. Edmonds v. John

L. Scott Real Estate, Inc., 87 Wn. App. 834, 855, 857, 942 P.2d 1072 (1997).

Edmonds’s realtor failed to return her earnest money after she withdrew from a

real estate transaction, and instead disbursed it to himself and the seller. Id. at

842-43. The court concluded that Edmonds’s action was on the contract for the

purpose of recovering attorney fees under a contractual fee shifting provision

because her claims arose directly out of duties created by her broker/buyer

agreement, the earnest money agreement, and the broker’s drafting of the earnest

money agreement. Id. at 855-56.

In contrast, in Boguch, the court held that the realtors were not entitled to

an award of fees for defending against Boguch’s tort claims. 153 Wn. App. at 619.

Included in the agreement between the parties was an attorney fee provision. Id.

at 607. The court found that Boguch’s claim that the realtor violated duties under

chapter 18.86 RCW was a tort claim, rather than a claim on the contract. Id. at

617. The court reasoned that although the realtor’s duty to Boguch arose because

the parties entered into a contractual relationship, the listing agreement itself did

not specify the duty of care that the realtor was required to provide. Id.

Additionally, Boguch’s claimed right of recovery was not based on the contract

itself. Id. at 618. Boguch alleged that the realtors were negligent in posting an

inaccurate depiction of his property’s boundary lines on the Internet and that, but

for their negligence, he would have sold the property sooner and for a higher price

than he eventually did. Id. at 603. Boguch also claimed that the realtors breached

39 No. 83127-5-I/40

their professional duties to exercise reasonable skill and care under RCW

18.86.030. Id. Finally, Boguch brought an unspecified breach of contract claim.

Id. Boguch sought to recover for breach of the common law and statutory duties

based on the realtors’ inaccurately portraying the boundaries of the property in an

online listing, not for the realtors’ failure to perform a contractual duty. Id. at 617.

The Boguch court distinguished Edmonds by noting that Boguch did not

claim that the realtors breached any particular provision of the contract or failed to

perform the obligation to advertise his property for sale. Id. at 618. This court

vacated the superior court’s award of attorney fees and remanded for recalculation

of the award after segregating fees associated with Boguch’s contract and other

claims. Id. at 600.

Here, both Edmonds and Boguch are applicable. The SRA between Hall

and JLS included an attorney fees clause that stated, “In the event either party

employs an attorney to enforce any terms of this Agreement and is successful, the

other party agrees to pay reasonable attorneys’ fees.” In his amended complaint,

Hall’s breach of contract claim alleged that JLS failed to represent Hall. This

directly implicated the SRA’s clause creating an agency relationship and alleged

failure to perform a contractual duty that therefore arises on the contract, similar to

Edmonds. JLS is entitled to reasonable attorney fees for Hall’s breach of contract

However, Hall’s claim for breach of duties under chapter 18.86 RCW is

based on alleged violations of statutory duties, not any duty arising from the SRA’s

terms. Similarly, Hall’s CPA claim is based on alleged unfair or deceptive acts or

40 No. 83127-5-I/41

practices separate from any of the SRA’s terms. Hall argues in his brief that the

alleged chapter 18.86 RCW violations constitute unfair or deceptive acts or

practices under the CPA. The SRA provides that if STCA is represented by Hall’s

brokers, Hall consents to his brokers acting as dual agents. The alleged violations

are based on statutory duties owed to Hall, not any duty arising from the SRA’s

terms. Finally, Hall’s misrepresentation claim, whether characterized as

intentional or negligent, was by JLS’s own admission based on conduct occurring

before the agency relationship was established in the SRA and amounted to a

claim that Hall would not have entered into the SRA but for JLS’s asserted

misrepresentations. Similar to Boguch, JLS is not entitled to reasonable attorney

fees for these claims.8

We vacate the superior court’s fee award and remand for recalculation of

the attorney fees and costs. In remanding for recalculation of attorney fees, we

hold that JLS is entitled to attorney fees only on Hall’s breach of contract claim, but

not on Hall’s chapter 18.86 RCW, CPA, and misrepresentation claims. We leave

to the superior court to address in the first instance the appropriate segregation

8 The record before this court reflects that JLS sought an award of fees and

costs totaling $150,270.68, JLS included no discussion about segregation based on claims subject to expense-shifting versus other claims, Hall objected to the lack of segregation in response, and JLS denied any segregation obligation in reply. On appeal, Hall challenges the lack of segregation and JLS responds that none was required. Despite both parties’ briefing the merits of the issue, neither party completed this court’s record by designating the superior court’s judgment awarding fees. It is apparent from the superior court’s record that it entered judgment for defendants for $150,270.68 when only JLS’s request for expenses remained to be determined. Judgment (January 27, 2022), https:// perma.cc/S38C-XGNP. We exercise our discretion under RAP 9.10 to reach the merits as briefed by the parties despite the incomplete record, vacate the judgment to the extent of its awarding fees and costs, and remand for recalculation.

41 No. 83127-5-I/42

when a party is entitled to recover fees on some claims but not others according

to the standards for segregating prevailing party attorney fees outlined in Boguch.

153 Wn. App. at 619-21.

JLS requests that it be awarded its reasonable attorney fees and costs

incurred in this appeal. A party may be awarded attorney fees based on a

contractual fee provision at the appellate level. Renfro v. Kaur, 156 Wn. App. 655,

666-67, 235 P.3d 800 (2010). The SRA includes a prevailing party provision for

awarding attorney fees. JLS is entitled to attorney fees only on Hall’s breach of

contract claim, but that claim was not raised on appeal. Accordingly, we decline

to award reasonable attorney fees on appeal to JLS.

VII

We affirm the superior court’s order granting JLS’s motion for summary

judgment dismissing Hall’s claims with prejudice. We vacate the superior court’s

judgment to the extent of its awarding attorney fees and costs to JLS and remand

for recalculation of the attorney fees and costs in a manner consistent with this

opinion. JLS shall recover costs on appeal under RAP 14.1(c).

WE CONCUR: