IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE C"3
PAUL COLVIN and No. 69051-5-1 PATRICIA GUERTIN, 50 -•,;i„."- Appellants, ro ^^-,v ~-\ "" T^r- *""0 °^£"T''° v.
• •
JAMES YOUNG and c3 '•'• CAROLYN YOUNG; KRISTINE K. and JOHN DOE SMITH, UNPUBLISHED OPINION
Respondents. FILED: April 21, 2014
Verellen, J. — In this action arising out of a residential real estate transaction,
the superior court dismissed the buyers' claims for intentional and negligent
misrepresentation under the independent duty doctrine. The record and briefing on
appeal are inadequate. We affirm.
FACTS
In 2006, Kristine Smith sold her Lynnwood residence to Paul Colvin and Patricia
Guertin (Colvin). At the time of the sale, a fence ran between the Colvin home and their
neighbors to the south, James and Carol Young. There was also a grassy knoll
between the fence and the Youngs' driveway.
In the seller disclosure statement portion of the real estate contract (also known
as Form 17), Smith answered a series of questions by checking boxes next to "Yes,"
"No," or "Don't know." She checked "Yes" in response to the question, "Do you have No. 69051-5-1/2
legal authority to sell the property?"1 She checked "Don't Know" in response to several
questions, including "Are there any encroachments, boundary agreements, or boundary
disputes?"; "Is there a boundary survey for the property?"; and "Are there any
covenants, conditions, or restrictions which affect the property?"2
In November, 2007, and again in 2009, Colvin had his property surveyed. The
2007 survey was recorded and shows the corners of the southern boundary that
separates Colvin's and the Youngs' properties. It notes that the surveyors found capped
rebar markers on the ground at the southern corners. The survey does not show the
location of the fence or other structures near the southern boundary.
In July, 2011, Colvin filed this action against Smith and the Youngs, alleging
adverse possession and mutual acquiescence against the Youngs and intentional
and/or negligent misrepresentation against Smith. The complaint alleged that in May
2011, the Youngs informed Colvin that they had previously granted, and now wished to
revoke, an unrecorded license allowing Smith to use a portion of their property along
her southern boundary. The complaint further alleged that Smith "never identified any
easements, licenses, or other encumbrances on the property regarding the Youngs
and/or her use of the disputed property."3 The complaint stated that Smith represented
that her property extended to the Youngs' driveway and that "Smith intentionally and/or
negligently failed to disclose the property boundary and/or acquiescence to the use of
the disputed property."4
1 Clerk's Papers at 50. 2 Clerk's Papers at 50. 3 Clerk's Papers at 33. 4 Clerk's Papers at 35. No. 69051-5-1/3
Smith moved for summary judgment, arguing that Colvin's claims were barred by
the independent duty doctrine and the three-year statute of limitation. Smith stated in
her declaration that she spoke only once with Colvin on her front porch and never
discussed any real estate issues with him.
In his response to Smith's motion, Colvin argued that Smith had fraudulently
concealed the true location of the southern boundary and her encroachment on, and
permissive use of, the Colvin property. Colvin claimed that this fraudulent concealment
breached a duty independent of the parties' contract and that his claims were not barred
by either the independent duty rule or the statute of limitation.
In his declaration, Colvin stated "I have mowed the grass, occupied a portion of
the disputed property with my deck and fence, . . . and have generally used and
maintained all of the disputed property since I moved in."5 He alleged that he "was
never advised, either by Defendant Smith or Defendants Young, that the property I was
maintaining did not belong to me until April 2011, when I received a letter from the
Young's attorney."6 He further alleged that "[i]t was only recently discovered by me that
property I had maintained and exclusively used since moving in was purportedly owned
by Defendants Young."7
In a responsive declaration, James Young alleged that he and his wife had
granted "permissive use" of the disputed property to Smith in 2002.8 According to
Young, shortly after buying Smith's property in 2006, Colvin repeatedly asked the
5 Clerk's Papers at 39. 6 Clerk's Papers at 38. 7 Clerk's Papers at 39. 8 Clerk's Papers at 72. No. 69051-5-1/4
Youngs "to quitclaim the area to him."9 The Youngs understood his request included
both the fenced property and the grassy knoll between the fence and the Youngs'
driveway. They alleged that "[s]ince 2006 Mr. Colvin knew that the property in question
(fenced area and grassy knoll) was not his property."10
The court granted summary judgment and dismissed Colvin's claims against
Smith. Colvin and the Youngs subsequently settled the remainder of the case. Colvin
appeals the dismissal of his claims against Smith.
DECISION
The sole issue on appeal is whether the superior court erred in granting
summary judgment. We review that decision de novo, engaging in the same
inquiry as the trial court.11 Summary judgment is proper ifthe pleadings, affidavits,
depositions, and admissions on file demonstrate that there is no genuine issue of
material fact and that the moving party is entitled to summary judgment as a matter of
law.12 All reasonable inferences from the evidence must be drawn in favor of the
nonmoving party.13
The parties agree that the superior court granted summary judgment based on its
conclusion that Colvin's claims for intentional and negligent misrepresentation were
barred by the independent duty doctrine. Colvin contends the court erred in dismissing
9 Clerk's Papers at 73. 10 Clerk's Papers at 72. 11 Dillon v. Seattle Deposition Reporters, LLC Wn. App. , 316 P.3d 1119, 1127 (2014) (quoting Green v. Normandy Park Riviera Section Cmtv. Club, 137Wn. App. 665, 681, 151 P.3d 1038 (2007)). 12 \± (citing CR 56(c)). 13 Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979). No. 69051-5-1/5
those claims. For several reasons, we conclude this contention is not reviewable on the
existing record and briefing.
First, our review is limited by RAP 9.12 and the superior court's order on
summary judgment. RAP 9.12, which governs review of summary judgment orders,
states:
On review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court. The order granting or denying the motion for summary judgment shall designate the documents and other evidence called to the attention of the trial court before the order on summary judgment was entered. Documents or other evidence called to the attention of the trial court but not designated in the order shall be made a part of the record by supplemental order of the trial court or by stipulation of counsel.
The order in this case states that the court read and considered "the following
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE C"3
PAUL COLVIN and No. 69051-5-1 PATRICIA GUERTIN, 50 -•,;i„."- Appellants, ro ^^-,v ~-\ "" T^r- *""0 °^£"T''° v.
• •
JAMES YOUNG and c3 '•'• CAROLYN YOUNG; KRISTINE K. and JOHN DOE SMITH, UNPUBLISHED OPINION
Respondents. FILED: April 21, 2014
Verellen, J. — In this action arising out of a residential real estate transaction,
the superior court dismissed the buyers' claims for intentional and negligent
misrepresentation under the independent duty doctrine. The record and briefing on
appeal are inadequate. We affirm.
FACTS
In 2006, Kristine Smith sold her Lynnwood residence to Paul Colvin and Patricia
Guertin (Colvin). At the time of the sale, a fence ran between the Colvin home and their
neighbors to the south, James and Carol Young. There was also a grassy knoll
between the fence and the Youngs' driveway.
In the seller disclosure statement portion of the real estate contract (also known
as Form 17), Smith answered a series of questions by checking boxes next to "Yes,"
"No," or "Don't know." She checked "Yes" in response to the question, "Do you have No. 69051-5-1/2
legal authority to sell the property?"1 She checked "Don't Know" in response to several
questions, including "Are there any encroachments, boundary agreements, or boundary
disputes?"; "Is there a boundary survey for the property?"; and "Are there any
covenants, conditions, or restrictions which affect the property?"2
In November, 2007, and again in 2009, Colvin had his property surveyed. The
2007 survey was recorded and shows the corners of the southern boundary that
separates Colvin's and the Youngs' properties. It notes that the surveyors found capped
rebar markers on the ground at the southern corners. The survey does not show the
location of the fence or other structures near the southern boundary.
In July, 2011, Colvin filed this action against Smith and the Youngs, alleging
adverse possession and mutual acquiescence against the Youngs and intentional
and/or negligent misrepresentation against Smith. The complaint alleged that in May
2011, the Youngs informed Colvin that they had previously granted, and now wished to
revoke, an unrecorded license allowing Smith to use a portion of their property along
her southern boundary. The complaint further alleged that Smith "never identified any
easements, licenses, or other encumbrances on the property regarding the Youngs
and/or her use of the disputed property."3 The complaint stated that Smith represented
that her property extended to the Youngs' driveway and that "Smith intentionally and/or
negligently failed to disclose the property boundary and/or acquiescence to the use of
the disputed property."4
1 Clerk's Papers at 50. 2 Clerk's Papers at 50. 3 Clerk's Papers at 33. 4 Clerk's Papers at 35. No. 69051-5-1/3
Smith moved for summary judgment, arguing that Colvin's claims were barred by
the independent duty doctrine and the three-year statute of limitation. Smith stated in
her declaration that she spoke only once with Colvin on her front porch and never
discussed any real estate issues with him.
In his response to Smith's motion, Colvin argued that Smith had fraudulently
concealed the true location of the southern boundary and her encroachment on, and
permissive use of, the Colvin property. Colvin claimed that this fraudulent concealment
breached a duty independent of the parties' contract and that his claims were not barred
by either the independent duty rule or the statute of limitation.
In his declaration, Colvin stated "I have mowed the grass, occupied a portion of
the disputed property with my deck and fence, . . . and have generally used and
maintained all of the disputed property since I moved in."5 He alleged that he "was
never advised, either by Defendant Smith or Defendants Young, that the property I was
maintaining did not belong to me until April 2011, when I received a letter from the
Young's attorney."6 He further alleged that "[i]t was only recently discovered by me that
property I had maintained and exclusively used since moving in was purportedly owned
by Defendants Young."7
In a responsive declaration, James Young alleged that he and his wife had
granted "permissive use" of the disputed property to Smith in 2002.8 According to
Young, shortly after buying Smith's property in 2006, Colvin repeatedly asked the
5 Clerk's Papers at 39. 6 Clerk's Papers at 38. 7 Clerk's Papers at 39. 8 Clerk's Papers at 72. No. 69051-5-1/4
Youngs "to quitclaim the area to him."9 The Youngs understood his request included
both the fenced property and the grassy knoll between the fence and the Youngs'
driveway. They alleged that "[s]ince 2006 Mr. Colvin knew that the property in question
(fenced area and grassy knoll) was not his property."10
The court granted summary judgment and dismissed Colvin's claims against
Smith. Colvin and the Youngs subsequently settled the remainder of the case. Colvin
appeals the dismissal of his claims against Smith.
DECISION
The sole issue on appeal is whether the superior court erred in granting
summary judgment. We review that decision de novo, engaging in the same
inquiry as the trial court.11 Summary judgment is proper ifthe pleadings, affidavits,
depositions, and admissions on file demonstrate that there is no genuine issue of
material fact and that the moving party is entitled to summary judgment as a matter of
law.12 All reasonable inferences from the evidence must be drawn in favor of the
nonmoving party.13
The parties agree that the superior court granted summary judgment based on its
conclusion that Colvin's claims for intentional and negligent misrepresentation were
barred by the independent duty doctrine. Colvin contends the court erred in dismissing
9 Clerk's Papers at 73. 10 Clerk's Papers at 72. 11 Dillon v. Seattle Deposition Reporters, LLC Wn. App. , 316 P.3d 1119, 1127 (2014) (quoting Green v. Normandy Park Riviera Section Cmtv. Club, 137Wn. App. 665, 681, 151 P.3d 1038 (2007)). 12 \± (citing CR 56(c)). 13 Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979). No. 69051-5-1/5
those claims. For several reasons, we conclude this contention is not reviewable on the
existing record and briefing.
First, our review is limited by RAP 9.12 and the superior court's order on
summary judgment. RAP 9.12, which governs review of summary judgment orders,
states:
On review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court. The order granting or denying the motion for summary judgment shall designate the documents and other evidence called to the attention of the trial court before the order on summary judgment was entered. Documents or other evidence called to the attention of the trial court but not designated in the order shall be made a part of the record by supplemental order of the trial court or by stipulation of counsel.
The order in this case states that the court read and considered "the following
pleadings: Kristine K. Smith's Motion for Summary Judgment, Declaration of Kristine K.
Smith."14 The order does not mention any of Colvin's submissions below, and Colvin
has not made those submissions a part of the reviewable record on appeal by
supplemental order or stipulation of counsel.
Second, though mentioned in the summary judgment order as a document
considered by the court below, Smith's declaration has not been made a part of the
official record on review.
Third, the record on appeal is inadequate to apply the independent duty doctrine.
"The independent duty doctrine is an analytical framework that is used to determine
whether one party to a contract can bring tort claims against another party to the
14 Clerk's Papers at 2. No. 69051-5-1/6
contract."15 The doctrine allows an action in tort ifthe injury is traceable to the breach of
a duty arising independently of the contract.16 However, "[t]he analytical framework
provided by the independent duty doctrine is only applicable when the terms of the
contract are established by the record. To determine whether a duty arises
independently of the contract, we must first know what duties have been assumed by
the parties within the contract."™ The record before us does not include the purchase
and sale agreement. Although it includes the seller disclosure form, this is, at most,
only a portion of the contract.18 Colvin has failed to carry his burden of providing an
adequate record for review.19
Fourth, Colvin's briefing is inadequate and raises theories and arguments that
differ from those raised below. The complaint alleged claims for "Intentional and/or
Negligent Misrepresentation."20 It did not mention fraud, fraudulent concealment, the
seller disclosure form, or Smith's alleged knowledge that her deck encroached onto the
Young's property. The complaint simply alleged that Smith "never identified any
easements, licenses, or other encumbrances on the property regarding the Youngs
and/or her use of the disputed property,"21 that Smith had an unrecorded license to
15 Donatelli v. D.R. Strong Consulting Engineers, Inc., 179 Wn.2d 84, 98, 312 P.3d 620 (2013). 16 JdL at 92. 17 jd. (emphasis added). 18 See Austin v. Ettl, 171 Wn. App. 82, 87 n.6, 286 P.3d 85 (2012) (split decision concluding that Form 17 is not part of a real estate contract). 19 See RAP 9.2; Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988) 20 Clerk's Papers at 35. 21 Clerk's Papers at 33. No. 69051-5-1/7
maintain the disputed property, and that she represented that her property extended all
the way to the Youngs' driveway.
For the first time in his response to Smith's motion for summary judgment, Colvin
mentioned that Smith answered "Don't know" to a question regarding encroachments on
the seller disclosure form. He then argued for the first time that "Smith's fraudulent
concealment of her encroachment is an independent duty" beyond the parties'
contract.22 Smith argued in her reply brief that the complaint did not state a claim for
fraudulent concealment.
On appeal, Colvin's claim continues to be a moving target. He initially described
his claims as "theories of Intentional and Negligent Misrepresentation" that rested, in
part, on an answer in the seller disclosure form that was not mentioned in his pleadings
below.23 In the argument portion of his brief, however, Colvin described his claim as
"Smith's fraudulent concealment of her encroachment" by building "part of [her]
residence on property that purportedly belongs to another."24 In her respondent's brief,
Smith expressed understandable confusion as to the precise nature of Colvin's claim
and noted its ongoing transformation. Smith repeated her argument that Colvin's
complaint failed to state a claim for fraudulent concealment. Colvin did not respond to
this argument in his reply brief.25
22 Clerk's Papers at 14. 23 The question was "Do you have legal authority to sell the property?" Smith answered "Yes." Clerk's Papers at 50. 24 App. Br. at 10. 25 Although we need not decide this issue, Colvin's complaint arguably fails to plead facts supporting a claim of fraudulent concealment. Fraudulent concealment can be pleaded either by affirmatively pleading the nine elements of fraud, Baertschi v. Jordan, 68 Wn.2d 478, 482, 413 P.2d 657 (1966), or pleading the breach of an No. 69051-5-1/8
It is well settled that "[w]e will not review an issue, theory, argument, or claim of
error not presented at the trial court level."26 Nor will we consider arguments that are
inadequately briefed.27 With respect to the nature of his claims and the adequacy of his
complaint, Colvin's briefing on appeal violates the spirit, if not the letter, of these rules.
The thoroughness of the briefing and the record are particularly important when, as
here, the issues on appeal involve an evolving and unsettled area of the law.
Given the deficient record and briefing on appeal, Colvin fails to establish a basis
for relief.28 Smith's request for costs on appeal under RAP 14.2 is granted, but her
request for fees is denied because the alleged contractual basis for fees is not in the
record.
Affirmed.
WE CONCUR:
^>254 P.3d 835 (2011). 28 In light of our disposition, we do not reach Smith's alternative bases for affirming summary judgment, including the statute of limitation and collateral estoppel.