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                                                         Z0I3KOV 18 ^9:|i*



        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEAN CURRY,
                                         DIVISION ONE
                       Appellant,
                                         No. 69155-4-1
                 v.



VIKING HOMES, INC., a Washington
corporation, DEVELOPERS' SURETY          UNPUBLISHED OPINION
& INDEMNITY CO. BOND NO.
549006C, bond issuer for Viking Homes,
Inc.,

                       Respondent.


VIKING HOMES, INC., a Washington
corporation, DEVELOPERS' SURETY
INDEMNITY CO. BOND NO.
549006C, bond issuer for Viking Homes,
Inc.,

             Third-Party Plaintiff,

                  v.



A&E INSULATION, INC., a
Washington corporation; A PLUS
SIDING COMPANY, LLC, a
Washington limited liability company;
ARTISTIC HOME THEATRE, INC., a
Washington corporation; BING
CARPENTRY, INC., a Washington
corporation; MONROE DOOR &
MILLWORK, INC., a Washington
corporation; BUILDER SERVICES
GROUP, INC., d/b/a GALE
CONTRACTOR SERVICES, a Florida
corporation; C TO C INTERIORS, INC.,
No. 69155-4-1/2




d/b/a/ C TO C CONSTRUCTION, a
Washington corporation; CASCADE
SAWING & DRILLING, INC., a
Washington corporation; CORRIDOR
ELECTRIC, INC., a Washington
corporation; VERN J. ASMUSSEN,
d/b/a CUSTOM CONCRETE QUALITY
FINISHING; G&S HEATING, COOLING
& ELECTRIC, INC., a Washington
corporation; KARTAK GLASS, INC.,
d/b/a KARTAK GLASS & CLOSET,
INC., d/b/a AAA KARTAK GLASS &
CLOSET CORP., a Washington
corporation; LANE MASONRY, INC., a
Washington corporation; ALI J.
FAKHAM, d/b/a MARBLE DESIGN;
MASTER'S TOUCH DRYWALL, INC.,
a Washington corporation; MATTILA
PAINTING, INC., a Washington
corporation; MICHAEL ASTROF
CONSTRUCTION, INC., a Washington
corporation; PROTEK ROOFING, INC.,
a Washington corporation; RELIABLE
PLUMBING NW, INC., a Washington
corporation; REECE TRUCKING &
EXCAVATING, INC., a Washington
corporation; SUPERFLOORS, INC., a
Washington corporation; and TPC
CONSTRUCTION, INC., a Washington
corporation; DOES 1-100,

             Third-Party Defendants.            FILED: November 18, 2013


      Dwyer, J. — When a party seeking summary judgment meets the initial

burden of demonstrating the absence of a genuine issue of material fact, our civil

rules provide that the opposing party may not rest upon mere allegations
contained in the pleadings. Instead, the opposing party must respond with

admissible evidence demonstrating the existence of a genuine issue of material
No. 69155-4-1/3




fact for trial. Here, in response to the motion for summary judgment filed by

Viking Homes, Dean Curry failed to present competent evidence to support the

elements of the claims alleged in his complaint. We affirm the trial court's order

on summary judgment dismissing Curry's suit.

                                               I


       In March 2007, Dean Curry entered into a Residential Real Estate

Purchase and Sale Agreement to purchase a new home constructed by Viking

Homes.1 In the months that followed, Viking worked with Curry to address

problems identified in the home inspection report and additional issues raised by

Curry. Many issues were never resolved to Curry's satisfaction and eventually,

Viking ceased to respond to further demands from Curry.

       On August 12, 2009, Curry filed suit against Viking.2 In his complaint,
Curry identified 49 defects, including both cosmetic and structural issues. He

alleged deficiencies with respect to several aspects of the home, including the

subfloor, entryway steps, doors, molding and trim, garage doors, bathroom

fixtures, and landscaping. Curry asserted four causes of action: breach of the

purchase and sale agreement, breach of an oral contract to remedy defects,

violation of the contractor registration act, chapter 18.27 RCW, and violation of

the Consumer Protection Act, chapter 19.86 RCW.

       Viking propounded a set of discovery requests to Curry in November

2010. A few months later, Viking's counsel contacted plaintiffs counsel about

       1Viking Homes dissolved in 2010.
       2Curry filed the lawsuit together with hisformer spouse Cheris Curry, who was
subsequently dismissed from the case by stipulation.
                                               3
No. 69155^-1/4




the outstanding discovery and requested a discovery conference. The

interrogatories and requests for production were still unanswered in July 2011,

when Viking obtained new counsel.

        Viking's new counsel conferred with Curry's counsel and the parties

entered into a stipulated scheduling order in October 2011. That order set

deadlines in February 2012 for Curry's disclosure of nonexpert testimony, and in

March 2012, for the disclosure of the identity and opinions of expert witnesses

and documents related to the construction, repairs, and alleged defects of the

home.

        Viking filed a third party complaint against over 20 subcontractors whose

work was implicated by the allegations in Curry's complaint. In February 2012,

Viking served Curry with another set of discovery requests. Several third party

defendant subcontractors also initiated discovery requests. Curry did not

respond to any of the discovery requests despite inquiries from Viking's counsel

and counsel for third party defendants. Curry's counsel withdrew from the case

in April 2012.

        In May 2012, Viking filed a motion for summary judgment. Viking argued

that Curry had offered no proof, through discovery or otherwise, to support the

allegations in the complaint.3 Curry did not respond to the motion, but appeared
at the June 15 hearing, and requested a continuance. The court continued the

hearing and allowed Curry additional time to file a response to the motion, but


        3Several third party defendants joined in Viking's motion.
                                                4
No. 69155-4-1/5




imposed sanctions on Curry. Curry engaged new counsel, who filed a limited

appearance on his behalf and filed a response to the motion.

       Curry urged the court to deny summary judgment because he had

participated in discovery and because the allegations in the pleadings were

sufficiently specific to defeat summary judgment. Curry attached a set of

responses to discovery requests signed and served in December 2009. The

answers did not include the questions they were responding to, nor did they track

the questions posed in the 2010 or 2012 interrogatories served by Viking and

submitted to the court in support of Viking's motion. Curry also provided Viking's

2010 responses to some of his own requests for admission.4 In addition, Curry
supplied his own declaration in which he described his "personal background as

a contractor" and a few of the construction defects referenced in the complaint,

specifically problems with exterior concrete, drainage issues, and some entry

doors. Curry maintained that he had responded to discovery provided to him by

the attorney who initially handled his case, but that his subsequent attorney did

not apprise him of any further requests.

      Following a hearing, the trial court granted Viking's motion. Curry appeals.

                                                  II


        As an initial matter, Curry correctly notes that the summary judgment

order fails to "designate the documents and other evidence called to the attention


         4 In the responses signed by Viking's former counsel, Viking admitted to several facts
related to the home. For instance, Viking admitted that there are resin patches on the granite
countertop, that the front step is 24-inches wide, that two light switches are absent, and that the
subfloor is uneven.
                                                  5
No. 69155-4-1/6




of the trial court before the order on summary judgment was entered." CR 56(h).

Although Curry argues that we must remand for the trial court to correct the

order, the authority he cites does not compel this result. See Barker v. Advanced

Silicon Materials. LLC. 131 Wn. App. 616, 128 P.3d 633 (2006) (deficiency of trial

court order in failing to designate the evidence relied upon did not preclude

appellate review). The trial judge expressly stated that she had reviewed all

materials filed by both parties and explicitly identified the materials most critical to

the court's decision, including the complaint, the answer, the interrogatories

propounded by Viking in 2010 and 2012, Curry's 2009 interrogatory responses,

the 2011 scheduling order, Viking's motion for summary judgment and reply,

Curry's belated response, and his declaration. The error in failing to list all

materials considered in accordance with CR 56(h) was not prejudicial in these

circumstances and does not impede our review. See W.R. Grace & Co. v. Dep't

of Revenue. 137 Wn.2d 580, 590-91, 973 P.2d 1011 M999V Citibank S. P.. N.A.

v. Ryan. 160 Wn. App. 286, 290 n.1, 247 P.3d 778 (2011).

       Curry contends that the trial court erred in granting the motion for
summary judgment because he complied with at least one discovery request and
the evidence before the court demonstrated the existence of genuine issues of

material fact for trial.

       A motion for summary judgment is properly granted ifthe pleadings,

affidavits, depositions, and admissions on file demonstrate the absence of any
genuine issues of material fact and the moving party is entitled to judgment as a
No. 69155-4-1/7




matter of law. CR 56(c). When considering a summary judgment motion, the

court must construe all facts and reasonable inferences in the light most

favorable to the nonmoving party. Lvbbert v. Grant County. 141 Wn.2d 29, 34, 1

P.3d 1124(2000). This court reviews a summary judgment order de novo and

we engage in the same inquiry as the trial court. Khunq Thi Lam v. Global Med.

Svs. Inc.. P.S.. 127 Wn. App. 657, 661 n.4, 111 P.3d 1258(2005).

      A moving party under CR 56 bears the initial burden of demonstrating the

absence of any genuine issue of material fact and entitlement to judgment as a

matter of law. Young v. Key Pharms.. Inc.. 112 Wn.2d 216, 225, 770 P.2d 182

(1989). When a motion for summary judgment is made and supported under CR

56, an adverse party may not rest upon the mere allegations of his pleading; the

response, by affidavits or as otherwise provided for by CR 56, must set forth

specific facts showing that there is a genuine issue for trial. Grimwood v. Univ. of

Puaet Sound. Inc.. 110 Wn.2d 355, 359, 753 P.2d 517 (1988). The party

opposing a motion for summary judgment may not rely on speculation,

argumentative assertions that unresolved factual issues remain, or on having its

affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co..

106Wn.2d 1, 13,721 P.2d 1 (1986): Craig v. Wash. Trust Bank. 94 Wn. App.

820, 824, 976 P.2d 126 (1999).

       Here, in response to Viking's motion for summary judgment, Curry argued

that the allegations in the complaint were "more than sufficient grounds for

overcoming" Viking's motion for summaryjudgment. While Curry appropriately
No. 69155-4-1/8




raised concrete allegations in his initial pleading, the allegations themselves were

merely opinions or suppositions, without a factual basis upon which the court

could deny a summary judgment motion. The "facts" required by CR 56(e) to

defeat a summary judgment motion are evidentiary in nature, and ultimate facts

or conclusory statements are insufficient. See Grimwood. 110 Wn.2d at 359.

Thus, standing alone, the assertions in Curry's complaint that certain aspects of

the home are defective, fail to establish the existence of genuine issues of fact

for trial.

         In his briefing, Curry points to a "plethora of evidence" to support the

claims raised in his complaint. But in fact, the only evidence before the court was

Curry's own declaration, some interrogatory answers to unknown questions, and

a handful of factual admissions by Viking. Curry refers to invoices, photographs,

copies of e-mail, a home inspection report, and other documents, but does not

cite to the record, and none of these documents actually appear in the record.

The interrogatory responses Curry submitted include a list that appears to refer

to documents, but no documents themselves. Neither Curry's interrogatory

answers nor Viking's admissions established a factual basis to support the

contractual and statutory claims. As the trial court observed, Curry's construction

defect claims were predicated on breach of contract, yet the record includes no

written contract. Nor is there any evidence in the record to establish the

existence of an enforceable oral agreement.




                                            8
No. 69155-4-1/9




       Curry claims that his declaration testimony raised genuine issues of fact

about deficiencies in the construction. But Curry's declaration merely provides

conclusory and thinly-veiled expert opinions. For instance, Curry claims the

driveway relief lines are too far apart, because "[i]n general, no one wants these

areas to [exceed] 13-15"." He opines that "[n]o amount of venting will overcome

the significant amount of water intrusion found under the house." And he

discusses the fact that the "dimensions of the last step at the landing were

grossly smaller than code."

       The declaration does not establish Curry's expertise to render such

opinions. ER 702. Curry describes working with his father, a contractor, when

he was a child and his experience as an adult in working in the modular space

division of General Electric. He states that he obtained both a general

contractor's license and home inspection certificate in 2003. It does not appear,

however, that Curry is a licensed contractor in Washington or has any practical

experience working as a contractor. In any event, Curry made no attempt to

establish admissibility under ER 702, the deadline for disclosing expert opinions

had passed, and the court made no "expert" determination. And as explained,

even if Curry's declaration raised a genuine issue of fact about the existence of

defects, no evidence in the record establishes the terms of any oral or written

contract.


       Curry also argues that he presented sufficient evidence to demonstrate

that Viking engaged in unfair and deceptive practices in violation of the CPA by
No. 69155-4-1/10




promising, butfailing to deliver, quality home construction.5 But again, while
Curry alleged in his complaint that Viking engaged in an unfair act by promising a

"high-quality product to Washington consumers," there is simply no evidence in

the record about Viking's representations or its business practices. Hangman

Ridoe Training Stables. Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719

P.2d 531 (1986) (to establish a claim under the CPA, a plaintiff must demonstrate

an unfair or deceptive act or practice, occurring in trade or commerce, public

interest impact, injury in business or property, and causation).

       Throughout his brief, Curry asserts that the trial court dismissed his

complaint as a discovery sanction and erred in doing so because he had, in fact,

responded to discovery more than two years before Viking moved for summary

judgment. This argument mischaracterizes the court's ruling. As the court aptly

stated in granting summary judgment:

       The purpose of the summary judgment motion is to test the
       sufficiency of the evidence and to apply it to the legal theories
       present in the case. I find no evidence of a prima facie showing of
       any of the causes of action based upon the evidence before me.

While it is clear that the failure to respond to discovery was the impetus behind

Viking's motion for summary judgment, the trial court did not dismiss Curry's

complaint as a sanction under CR 37. The court applied the proper standard and

granted the motion based on Curry's failure to provide competent evidence to

establish the elements of his claims.


        5Curry does notcontend that any evidence in the record supports a claim under the
contractor registration act. He also asserts on appeal that there is evidence suggesting a breach
of an implied warranty of habitability, but he did not raise this legal theory in hiscomplaint.
                                               10
No. 69155-4-1/11




      We affirm the order of summary judgment.



                                                 4C*4.<^

We concur:




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