          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LINCOLN BEAUREGARD and             )              No. 77431-0-1 consolidated with
LESLIE BEAUREGARD, a marital       )              No. 77501-4-1
couple,                            )
                                   )
     Appellants/Cross-Respondents, )
                                   )              DIVISION ONE
                  v.               )
                                   )
ANNA RILEY, an individual,         )             PUBLISHED OPINION
                                   )
     Respondent/Cross-Appellant.   )
                                   )              FILED: June 24, 2019
                                   )

       MANN, A.C.J. — Lincoln and Leslie Beauregard appeal the summary judgment

dismissal of their claims against their former real estate agent, Anna Riley, for

negligence, breach of statutory real estate broker duties, and violations of the

Washington Consumer Protection Act(CPA).1 The Beauregards are unable to establish

that Riley's actions were the proximate cause of their claimed injuries. Accordingly, we

affirm dismissal of their claims.

       Riley cross-appeals the trial court's determination that Riley owed and breached

a statutory duty to communicate a rental inquiry to the Beauregards. Riley did not have

a duty to communicate rental inquiries under RCW 18.86.030(1)(c). Therefore, we

reverse the trial court's conclusion to the contrary.

       1 Ch. 19.86 RCW.
No. 77431-0-1/2


                                             1.

      The Beauregards retained Riley to list and sell their property in Bellevue,

Washington. Riley is a realtor with Windermere Real Estate/East, Inc. in Bellevue.

During Riley's initial meeting with the Beauregards at their Bellevue home, the

Beauregards mentioned they were also considering another real estate broker.

Ultimately the Beauregards chose Riley because she estimated the property could be

listed at $2,488,000, higher than the other agent's estimate. Riley recalls merely

"shar[ing] with them that other clients. . . were buying a similar sized home one block

over that was listed at $2,488,000" and offered that amount as an example, only after

the Beauregards insisted on her opinion. The Beauregards maintain that Riley inflated

the price to induce them to enter the Exclusive Sale and Listing Agreement(the Listing

Agreement).

       Ms. Beauregard told Riley that, if they did not get offers within their desired price

range, they were also interested in renting their property. Riley concedes this

alternative was discussed, but the Listing Agreement contracts Riley to "sell" the

property, and specifically indicates that the "[firm need not submit to Seller any offers to

lease, rent, execute an option to purchase, or enter into any agreement other than for

immediate sale of the Property."

       The parties signed the Listing Agreement on November 11, 2015. The Listing

Agreement did not include a list price, but listed the property as viewable by

"Appointment," "Call Listing Office," and through the "Multiple Listing Service (MLS)

Keybox." Riley also listed the property as owner-occupied despite it being vacant

because for "premier properties," Riley prefers to go to the property before a showing,

                                          -2-
No. 77431-0-1/3


turn on the lights and heat, discuss key features of the home with the buyer's broker,

and ensure the doors are locked after the showing. Additionally, Riley maintains that

the property was not truly vacant because some of the Beauregards' furniture was

present, and a vacant property is more susceptible to theft. The Beauregards maintain

that Riley never fully explained to them that the property was listed as owner-occupied

or as viewable by appointment, and had they known, the Beauregards would have

never agreed to those terms. Those terms, however, were clearly listed in the Listing

Agreement signed by the Beauregards.

       On December 4, 2015, Riley e-mailed the Beauregards, recommending a list

price between $1,950,000 and $2,150,000. Ms. Beauregard replied that she thought

they had discussed a higher starting price range. Riley arrived at the suggested list

price after conducting market research, which included two comparable properties in the

same neighborhood. The first was listed for $2,488,000, but sold for $2,285,000. The

second was listed for $2,249,000, but sold for $2,175,000. The property is a stacked

three level floorplan, lacking an open floorplan, and with recent market preference

trending towards open floorplans, Riley suggested a lower list price to compensate for

the market trends. The Beauregards disagreed with Riley's recommendation and the

property was listed for $2,288,000 with a $5,000 "paint/deck stain credit" and went

active on December 9, 2015.

       The parties characterize the discussions about listing the property over the

holiday period differently. The Beauregards maintain they contacted Riley about

delisting the property over the holiday season, but Riley never responded because she

was vacationing in France. Riley maintains that there was less inventory on the market,

                                         -3-
No. 77431-0-1/4


and listing over the holiday period would capitalize on buyers trying to relocate before

the New Year.

       During the months following the initial listing, Riley's office hosted at least 18

open houses at the property. No prospective buyers submitted offers during that period.

The Beauregards contend that the lack of offers was because Riley failed to follow-up

with prospective buyers and used old photographs in the listing. At several points

during her representation, Riley recommended that the Beauregards drop the list price

because other nearby properties had recently lowered their prices and attracted buyers.

On February 3, 2016, the Beauregards agreed to reduce the price to $2,173,000,

stating "[w]e had always felt the 2.28 was ambitious, but wanted to try it." Riley

recommended a further price reduction on March 20, 2016, to $1,998,000, but the

Beauregards disagreed.

       On March 6, 2016, the Beauregards notified Riley they wanted to switch real

estate agents because they felt Riley was not following up with prospective buyers and

had too many other listings in the Bellevue area. Riley convinced the Beauregards to

give her a second chance. Riley and the Beauregards made several changes to the

property and updated the listing photos, which showcased the re-sodded backyard, the

exterior paint job, and updated interior photos.

       Ultimately, the Beauregards terminated their Listing Agreement with Riley in April

2016, and entered a new agreement with Nancy Klinck. The property sold on August

17, 2016 for $1,850,000.

       The Beauregards filed their complaint alleging Riley breached statutory duties,

was negligent, and violated the CPA. The Beauregards advanced a theory that Riley's

                                           -4-
No. 77431-0-1/5


cumulative breaches caused their property to remain on the market for too long, leading

to low offers from prospective buyers. The Beauregards claimed that Riley fraudulently

induced them to enter the Listing Agreement by inflating the value of their property to

$2,488,000, which was an unfair and deceptive act under the CPA.

       During discovery, the Beauregards recovered an e-mail inquiry from Mark

Williams, another realtor with Windermere, sent to Riley on April 6, 2016. Williams

inquired whether the Beauregards would be interested in renting as opposed to selling

because he had a client looking to move in mid-June from San Francisco, and rent a

2000+ sq/ft house for $3,500 a month. Riley replied that the Beauregards were not

interested in renting the property. Ultimately, the prospective renter never rented a

property in Bellevue, and stayed in a hotel only for a couple of months before moving

back to San Francisco. The Beauregards contend that Riley was required by RCW

18.86.030(1)(c) to inform them of this "offer" to rent their property, failed to do so, and if

this "offer" was conveyed, they would have accepted.

       Riley moved for summary judgment. In response, the Beauregards retained

Lawand Anderson, a realtor and attorney, as an expert. The Beauregards filed a cross-

motion for summary judgment. Riley filed a motion to strike the declaration of

Anderson, contending Anderson was not qualified as an expert and her opinion was

based on speculation.

       The trial court denied the motion to strike, indicating "the basis of speculation

may be argued as part of the summary judgment motion." The trial court granted

Riley's motion for summary judgment as to the Beauregards' CPA claim and negligence

claim, but denied summary judgment as to the Beauregards' statutory duties claim,

                                           -5-
No. 77431-0-1/6


finding Riley had a duty to convey the rental inquiry and breached it, but reserved

further ruling on causation and damages.

       Riley filed a second motion for summary judgment on the issue of causation,

contending the Beauregards were unable to prove that Riley proximately caused the

Beauregards' claimed injuries. The trial court granted Riley's second motion for

summary judgment and dismissed all of the Beauregards' claims.

      The Beauregards appeal the trial court's grant of summary judgment in favor of

Riley. Riley cross-appeals the trial court's finding that she owed the Beauregards a duty

under RCW 18.86.030(1)(c) to transmit the rental inquiry and breached that duty. Riley

also appeals the trial court's consideration of the Beauregards' expert declaration.

                                            II.

       Common to each of the Beauregards' claims is the issue of whether Riley's

actions proximately caused the Beauregards' claimed injuries. The Beauregards

contend the trial court erred in granting summary judgment because they presented

sufficient evidence to establish an issue of material fact for proximate causation. We

disagree.

       We review a trial court's grant of summary judgment de novo, considering "all

reasonable inferences from the evidence in the light most favorable to the nonmoving

party." Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). "Summary

judgment is appropriate only when no genuine issue exists as to any material fact and

the moving party is entitled to judgment as a matter of law." Keck, 184 Wn.2d at 370.

Mere allegations or conclusory statements of fact that are unsupported by the evidence



                                         -6-
No. 77431-0-1/7


are insufficient to show a genuine issue. Baldwin v. Sisters of Providence in Wash.,

Inc., 112 Wn.2d 127, 132, 769 P.2d 298 (1989).

       When the moving party is the defendant, it may meet its burden of showing there

is no dispute of material fact by "pointing out that there is an absence of evidence to

support an essential element of the plaintiff's claim." Boquch v. Landover Corp., 153

Wn. App. 595, 609, 224 P.3d 795 (2009). "To avoid summary judgment, the plaintiff

must make out a prima facie case concerning the essential element of its claim."

Boquch, 153 Wn. App. at 609. If the plaintiff is unable to present a dispute of material

fact concerning an essential element that it bears the burden of proof at trial, the trial

court should grant the motion. Boquch, 153 Wn. App. at 609.

       Real estate brokers owe the statutory duties listed in RCW 18.86.030 to "all

parties to whom the broker renders real estate brokerage service." In 2013, the

legislature amended RCW 18.86.110 in light of the Supreme Court's holding in

Jackowski v. Borchelt that real estate brokers owed clients common law fiduciary duties

in addition to the statutory duties. 174 Wn.2d 720, 732-33, 278 P.3d 1100 (2012). The

amendment makes clear that "[t]he duties under this chapter are statutory duties and

not fiduciary duties. This chapter supersedes the fiduciary duties of an agent to a

principal under the common law." RCW 18.86.110.

       To demonstrate that the defendant's breach was the proximate cause of the

plaintiff's injury, the plaintiff must demonstrate both cause in fact and legal causation.

Boguch, 153 Wn. App. at 609 (citation omitted). Cause in fact is established by

showing that "but for" the defendant's breach, the plaintiff's alleged injury would not

have occurred. Boquch, 153 Wn. App. at 609. Legal causation relates to the question

                                           -7-
No. 77431-0-1/8


of duty, and addresses how far to extend a defendant's responsibility, when despite

being the cause in fact of the plaintiff's injury, the defendant's actions are either too

remote or other policy considerations suggest cutting off liability. Hertog v. City of

Seattle, 138 Wn.2d 265, 282-83, 979 P.2d 400(2009)(citation omitted).

       The causation analysis under the CPA is the same analysis as cause in fact.

The Beauregards must show that "but for the defendant's unfair or deceptive practice,

the plaintiff would not have suffered an injury." Indoor Billboard/Wash., Inc. v. Integra

Telecom of Wash., Inc., 162 Wn.2d 59, 83, 170 P.3d 10 (2007).

       Both parties argue Boguch is analogous. In Boguch, this court found that the

plaintiff had not met his burden of production on the issue of causation. Boguch, 153

Wn. App. at 612. The realtors in Boguch breached their duty by including in the listing,

a picture that inaccurately depicted the boundary of the property. Boguch, 153 Wn.

App. at 612. The plaintiff identified a prospective buyer and argued the buyer would

have purchased the property but for the realtors' breach. Boguch, 153 Wn. App. at 612.

       The prospective buyer, however, had multiple other reasons for not purchasing

the property, including the property's general location, the direction of the view, and the

slope of the land. Boguch, 153 Wn. App. at 612. The court determined that there was

an absence of evidence that, but for the realtors' breach, the property would have sold

within a certain price range. Boguch, 153 Wn. App. at 612. In making this

determination, the court concluded that, "other than the eventual buyers, only one

individual, Bennett, expressed even the slightest interest in purchasing the property."

Boguch, 153 Wn. App. at 612. Thus, it was not only "speculative as to whether there

was in fact a prospective buyer who would have purchased Boguch's property but it

                                           -8-
No. 77431-0-1/9


[was] also speculative as to whether such a prospective buyer was dissuaded from

purchasing the property because of the inaccurate posting." Boquch, 153 Wn. App. at

612.

       Under Boguch, the Beauregards must show there was a prospective buyer who

would have been willing to purchase the property in their desired price range, but for

Riley's negligence. See Boquch, 153 Wn. App. at 613. Similarly to Boquch, the

Beauregards' theory "rests on the assumption that unknown prospective buyers who

would have purchased the property either never considered it because their agents

decided not to show it to them or must have had misgivings about the property based

on the length of time it was on the market." Boquch, 153 Wn. App. at 613. In Boquch,

the record was insufficient to show that a generalized negative perception of homes on

the market for long periods of time was "in fact held by any identified prospective buyer

who considered Boguch's property or by such a prospective buyer's agent." Boquch,

153 Wn. App. at 613. Ultimately, the court concluded that a trier of fact could not

"reasonably infer that Boguch would have obtained a result different from the terms of

the eventual sale without speculating about other essential facts." Boquch, 153 Wn.

App. at 613.

       Here, the Beauregards allege 10 ways Riley breached her duty as their agent,

but fail 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.2 The


       2 The Beauregards argue Riley breached her duty by:
       (1) inducing them to enter the listing agreement dated November 11, 2015 by way of
       negligent pricing advice by proposing a value of $2,400,000,(2) advising them to list their
       home at an unmarketable value of $2,288,000 and bad pricing thereafter,(3) failing to
       clearly discuss the advertised listing terms including orally clarifying that other agents
                                                -9-
No. 77431-0-1/10


Beauregards also identify negative sentiments held by people who viewed the property,

but the Beauregards cannot identify in the record any potential buyer, including the

ultimate buyer, who would have made an offer within the Beauregards' price range, but

for Riley's breaches.

       Thus, under Boquch, the Beauregards have failed to establish proximate

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



       Riley cross-appeals and contends that the trial court erred when it found that

Riley had a duty under RCW 18.86.030(1)(c) to communicate a rental inquiry to the

Beauregards. We agree.

       We review issues of statutory construction de novo. State v. Evans, 177 Wn.2d

186, 191, 298 P.3d 724 (2013). "When interpreting a statute, our fundamental objective

is to determine and give effect to the intent of the legislature." State v. Sweany, 174

Wn.2d 909, 914, 281 P.3d 305(2012)(citation omitted). The court's analysis begins by

looking to the text of the statutory provision, the context in which the provision is found,

related provisions, and the statutory scheme as a whole. Sweanv, 174 Wn.2d at 914.

       The statutory duty to convey all "written offers, written notices and other written

communications" is triggered once a broker is rendering "real estate brokerage

services." See RCW 18.86.030(1)(c). As discussed above, the amendment to chapter

       would be informed of the suggestion for appointment,(4) informing other agents that she
       should be contacted prior to any viewings,(5) recommending that the Beauregards list
       their home over the dormant holiday season,(6) failing to respond to the Beauregards
       inquiry of December 21, 2015 about de-listing the home over the holidays,(7) utilizing old
       photos of the 2013 listing that were not representative of the home at the time of current
       marketing,(8) failing to follow up with interest [sic] buyers in the spring of 2016,(9)failing
       to inform the Beauregards of the April 6, 2016 offer to rent their home for a 2-years [sic]
       lump sum cash payment, and (10) elevating her own financial incentives over and above
       the Beauregards express and/or implied goals.
                                                 -10-
No. 77431-0-1/11


18.86 makes clear that "[t]he duties under this chapter are statutory duties and not

fiduciary duties. This chapter supersedes the fiduciary duties of an agent to a principal

under the common law." RCW 18.86.110.

       At issue in this appeal is the duty described in RCW 18.86.030(1)(c), which

imposes statutory duties on real estate brokers:

      (1) Regardless of whether a broker is an agent, the broker owes to all
      parties to whom the broker renders real estate brokerage services the
      following duties, which may not be waived: . . .

      (c) To present all written offers, written notices and other written
      communications to and from either party in a timely manner, regardless of
      whether the property is subject to an existing contract for sale or the buyer
      is already a party to an existing contract to purchase.

Brokers owe these duties "to all parties whom the broker renders real estate brokerage

services." RCW 18.86.030. "Real estate brokerage services" is defined as "the

rendering of services for which a real estate license is required under chapter 18.85

RCW." Chapter 18.85, 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). Thus, while the statute explains

that the duties are not waivable, they are owed when only a broker is acting for

"compensation or the promise or expectation of compensation."

      To ascertain the scope of Riley's agency we must look to the Listing Agreement

to determine the compensation Riley expected to receive for her services. The Listing

Agreement defines "sell" to include a "contract to sell; an exchange or contract to




                                         -11-
No. 77431-0-1/12


exchange; an option to purchase; and/or a lease with option to purchase." "Sell" is used

in the commission section of the Listing Agreement as follows:

      COMMISSION. If during the Listing Term (a) Seller sells the Property and
      the buyer does not terminate the agreement prior to closing; or(b) after
      reasonable exposure of the Property to the market, Firm procures a buyer
      who is ready, willing, and able to purchase the Property on the terms in
      this Agreement, Seller will pay.. . Firm a commission of 6% of the sales
      price. . . . Further, if Seller shall, within six months after the expiration of
      the Listing Term, sell the Property to any person to whose attention it was
      brought through the signs, advertising or other action of Firm, or on
      information secured directly or indirectly from or through Firm, during the
      Listing Term, Seller will pay Firm the above commission.[3]

By the terms of the Listing Agreement, "selling" includes "leasing with option to

purchase." Thus, the scope of the Listing Agreement included leasing, but only when

coupled with an option to purchase.

      In the e-mail Riley received from Williams, the e-mail specifically asked if the

Beauregards would be interested in renting their house, as opposed to selling.4 The e-

mail communication does not fall within the "real estate brokerage services" that the

Beauregards contracted with Riley because Williams clearly indicated that the

interested party only wanted to rent the property. Since Riley's scope of agency was

limited to selling the property, Riley was not expecting compensation from renting the


      3(Emphasis added.)
      4 The  e-mail stated:
      Shot in the dark but wondering if your client at 10052 NE 30th Place, Bellevue 98004
      might be interested in renting their house as appose [sic] to selling, I have a friend
      moving from SF in mid June looking for a rental to get acquainted with the area. He and
      his family are looking in West Bellevue area like Clyde Hill, Medina, Hunts point, Yarrow
      point and surrounding.

      $3500/mo is his target monthly
      2000+ sq/ft
      House
      2+ bedrooms
      He is willing to sweeten the offer by paying cash in full for a year if needed and looking
      for 1-2 year.
                                                -12-
No. 77431-0-1/13


property. Therefore Riley did not have a duty to communicate the rental inquiry under

RCW 18.86.030(1)(c).

       We affirm dismissal of the Beauregards' claims. We reverse the trial court's

finding that Riley had a statutory duty to communicate the rental inquiry and breached

that duty.5




                                                                  Z4


WE CONCUR:




       5 Since  we affirm the trial court's grant of summary judgment on causation, we decline to reach
Riley's cross-appeal on whether the trial court erred by considering Anderson's expert declaration.
                                                -13-
