    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE MCNAUGHTON GROUP, LLC, a
Washington limited liability company,                  No. 70064-2-

                    Respondent,                        DIVISION ONE

             v.                                        UNPUBLISHED OPINION


HAN ZIN PARK and REGINA KYUNG
PARK, husband and wife, and the marital
community property comprised thereof,                                                    «8
                                                                                             :»
                                                                                   2b>
                    Appellants,                                                              -n_


WINDERMERE REAL ESTATE
COMPANY, a Washington corporation;                                                 s     12S
JULIE MANOLIDES and JOHN DOE
MANOLIDES, husband and wife,                                                      en     §^

             Third Party Defendants.                   FILED: March 31, 2014


      Appelwick, J. — The Parks appeal the denial of their motion for summary

judgment, arguing that their real estate contract with TMG was void for lack of legal

description. TMG asserts that the Parks waived this affirmative defense. The Parks

also make several evidentiary assignments of error. We affirm.

                                        FACTS


      In 2004, Han and Regina Park negotiated with The McNaughton Group LLC

(TMG) over sale of the Parks' property in Edmonds, Washington. That September, the

parties drew up a purchase and sale agreement (2004 PSA) with a purchase price of

$2,425,000. However, the negotiations ultimately fell through.

      In early 2005, the parties resumed negotiations for sale of the property. Initially,

TMG offered the Parks $2,400,000. The Parks counter-offered with $2,425,000, which
No. 70064-2-1/2




TMG accepted. The parties executed the new purchase and sale agreement (2005

PSA) on or about February 28, 2005.

       Before closing, however, the parties sparred over the terms of the contract,

namely the purchase price. The Parks argued that, contrary to the terms of the 2005

PSA, an additional $180,000 was due. The closing date was set for September 11,

2006. Ultimately, however, the Parks did not close on the property.

       TMG filed suit against the Parks for breach of contract and filed a lis pendens on

the property. The Parks counterclaimed and argued that it was TMG who breached the

contract. The Parks later moved for summary judgment, asserting that the 2005 PSA

was void for lack of legal description. The trial court denied their motion, finding that

they had waived the statute of frauds as a defense.

       The case proceeded to trial on January 22, 2013. The jury ultimately found for

TMG. The Parks appeal.

                                      DISCUSSION


  I.   Motion for Summary Judgment

       The Parks argue that the trial court improperly denied their motion for summary

judgment. This court reviews a trial court's summary judgment order de novo. Korslund

v. DvnCorp Tri-Cities Servs.. Inc.. 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Summary

judgment is proper if there are no genuine issues of material fact and the moving party

is entitled to judgment as a matter of law. jd_. This court construes the facts and

reasonable inferences therefrom in the light most favorable to the nonmoving party, hi
No. 70064-2-1/3




   A. Waiver of Statute of Frauds Defense

      The Parks first contend that the trial court erred in finding that they waived the

statute of frauds defense. CR 8(c) establishes that the statute of frauds is a defense

that must be affirmatively set forth by a party.     Generally, affirmative defenses are

waived unless (1) affirmatively pleaded; (2) asserted in a CR 12(b) motion; or (3) tried

with the parties' express or implied consent. Henderson v. Tyrrell. 80 Wn. App. 592,

624, 910 P.2d 522 (1996). The policy behind this rule is to avoid surprise. Id, Where

that policy is not a concern, and the failure to affirmatively plead a defense does not

affect the substantial rights of the parties, we will consider noncompliance harmless, jd.

       In Henderson, the trial court refused to instruct the jury on nonparty fault, an

affirmative defense that the defendant failed to raise in any responsive pleading, jd. at

621-22. The appellate court found that this was not an abuse of discretion. \± at 625.

It reasoned that the defendant was aware of the issue and did not raise it during the

many months before trial. ]d. To allow him to raise the defense right before trial, the

court stated, would require the parties to engage in substantial new discovery. ]d.

       By contrast, in Bickford v. City of Seattle, this court found that the trial court

abused its discretion in ruling that the defendant failed to timely raise its affirmative

defense of setoff. 104 Wn. App. 809, 813, 17 P.3d 1240 (2001). There, the defendant

did not expressly plead the defense in its answer, jd. at 814. But, this court reasoned,

the parties had impliedly consented to try the issue by discussing setoff with the court

and agreeing about how it would be presented and the figures that would be used. j<±
No. 70064-2-1/4




      Here, the court made the following findings:

           1. This case was filed on September 28, 2006;
           2. The Parks never mentioned or ple[a]d[ed] the Statute of Frauds in
              their answer, counterclaims, or third party claims;
           3. The discovery cut-off date was May 21, 2012,
           4. This motion was noted for May 30, 2012, a date after the discovery
              cut-off; and
           5. The Parks raised the Statute of Frauds as a defense for the first
              time in this motion.
            To permit the Parks to raise the Statute of Frauds at this late date
      would be unduly prejudicial and unfair to Plaintiff.

The Parks argue that these findings ignored their pleadings and that they had openly

contested the contract.


      It is true that the Parks challenged the 2005 PSA in their answer to TMG's

complaint, but their arguments involved the purchase price. There was no mention of

the statute of frauds or concern about the legal description of the property. Nor was

there mention of those issues in any of their many subsequent pleadings.

       Like the defendant in Henderson, the Parks failed to raise their affirmative

defense in their responsive pleadings. They were able to raise the statute of frauds

defense earlier, having had access to the 2005 PSA since the beginning of the lawsuit.

But, for six years, the Parks did not raise an issue about the legal description of the

property. And, when they did raise the issue, it was not until discovery had concluded.

There is no evidence that, as in Bickford. the parties had consented to try the issue.

The policy concerns behind the affirmative pleading rule thus apply here.

      The trial court did not err in finding that the Parks waived the statute of frauds

defense.
No. 70064-2-1/5



   B. Statute of Frauds: Adequate Legal Description

       Even if the statute of frauds defense had not been waived, denial of summary

judgment motion was proper.      Under the statute of frauds, a contract for the sale or

conveyance of real property must include a legal description of the property. Pardee v.

Jolly. 163 Wn.2d 558, 566-67, 182 P.3d 967 (2008). An inadequate legal description

renders a contract void. Maier v. Giske. 154 Wn. App. 6, 15, 223 P.3d 1265 (2010). A

valid legal description for platted property must include the lot number, block number,

addition, city, county, and state. Martin v. Seiqel. 35 Wn.2d 223, 229, 212 P.2d 107

(1949). The description may appear in the contract itself, or the contract may reference

another instrument that contains a sufficient description. Bioelow v. Mood. 56 Wn.2d

340, 341, 353 P.2d 429 (1960).

       Here, the legal description reads:

       The real property ("Property") located at 7704 Olympic View Dr., 18314 Olympic
      Vw Dr., 18408 79th AV W, 18325 80th AV W, Edmonds Wa, ("homes and land"),
      Tax Parcel ID #'s 00370800301000, 00370800100900, 00370800101100,
      00370800101200 and Tract 106, Edmonds Sea View Tracts as per plat recorded
       in volume 3 of plats page 76, records of Snohomish County, 00434600010601.

The description includes the city, county, and state where the property sits.

      TMG argues that this legal description is sufficient and cites to Bingham v.

Sherfev. where the court approved a legal description that identified a property using its

tax parcel number. 38 Wn.2d 886, 889, 234 P.2d 489 (1951). The Parks counter that

Bingham does not apply, because it establishes requirements for only unplatted

property.

       The Parks are correct: it is not Bingham, but Martin that establishes legal

description requirements for platted property.      See 35 Wn.2d at 229.        The legal
No. 70064-2-1/6




description here meets three of Martin's requirements—city, county, and state—but

does not include the property's lot number, block number, and addition.     This is an

insufficient legal description on the four corners of the document.

       However, TMG also argues that the 2005 PSA referred to another instrument

with a sufficient description.      If parties to a contract clearly and unequivocally

incorporate by reference another document, that document becomes part of the parties'

contract.   Satomi Owners Ass'n v. Satomi. LLC. 167 Wn.2d 781, 801, 225 P.3d 213

(2009).     This allows the parties to incorporate terms by reference to a separate

agreement, including an agreement that is not physically attached. Knight v. Am. Nat'l

Bank. 52 Wn. App. 1, 4-6, 756 P.2d 757 (1988). It must be clear that the parties knew

of and assented to the incorporated terms. W. Wash. Corp. of Seventh-Day Adventists

v. Ferrellqas. Inc.. 102 Wn. App. 488, 494-95, 7 P.3d 861 (2000).       The provisions

referenced must have a reasonably clear and ascertainable meaning. ]o\ at 494.

       At issue here are two documents: the 2005 PSA and the 2004 PSA.       The 2005

PSA has a typed date of February 18, 2005. TMG signed the 2005 PSA on February

19, 2005, and the Parks signed it on February 20, 2005. The 2005 PSA states that it

includes the following: "Addendum," "Promissory Note" and "counter addendum + 3

pages of prior addendum."          Attached to the PSA are the following: a four-page

document entitled "Addendum to Purchase and Sale Agreement"; a promissory note; a

document called "Addendum B to Purchase and Sale Agreement Date 2/19/05"; and

three additional pages of terms.
No. 70064-2-1/7




      Addendum B contains a handwritten note designating it as a "counteroffer." The

addendum states that:


      In the event, if there arise any dispute over the scope of the applicable clause(s)
      on Specific terms of Addendum 1 through 14, (dated 2/19/05)., [sic] Precious Tsicl
      agreement executed on September 8. 2004. page 1 through 13, supercedes Tsicl
      and replaces any provision on the topics contained in purchase and sale
      agreement proposed and executed on February 19, 2005.

(Emphasis added.)

      The 2004 PSA has a typed date of September 2, 2004. TMG signed the 2004

PSA on September 2, 2004, and the Parks signed it on September 8, 2004. The 2004

PSA includes an addendum listing the full legal description of the properties.

      TMG argues that, by virtue of Addendum B, the 2005 PSA incorporates the 2004

PSA. The language of Addendum B clearly and unequivocally incorporates a previous

agreement executed on September 8, 2004.            The parties signed Addendum B,

demonstrating that they knew of and assented to its terms.           The Parks contend,

however, that a September 8, 2004, agreement does not exist.         While September 8

does not correspond with the typed date of the 2004 PSA, it does correspond to the

date upon which the Parks signed the PSA.        The record does not contain any other

document with that date, nor do the Parks allege that Addendum B refers to another

particular document.     The agreement referenced thus had a reasonably clear and

ascertainable meaning.

      The Parks further contend that Addendum B is not a lawful part of the 2005 PSA.

This is so, they maintain, because the 2005 PSA does not on its face refer to an

"Addendum B." The Parks are correct that the 2005 PSA does not specifically refer to

Addendum B, but to a "counter addendum."           But, Addendum B is identified as a
No. 70064-2-1/8




"counter offer." It was stamped and initialed by the parties on February 28, 2005, the

same date that the 2005 PSA was stamped and initialed. And, the documents that the

2005 PSA lists as attachments correspond in number and type to the documents

attached to the executed 2005 PSA. This includes Addendum B.

       In their briefs, the Parks do not argue that "counter addendum" refers to another

document in particular.    Before trial, they asserted that it referred to a document

increasing the purchase price. TMG disputed this, noting that the document bore only

the Parks' initials and that TMG never saw the document until the closing date had

passed.

       The Parks also argue that Addendum B refers to a February 19, 2005,

agreement that does not exist. Again, this date does not correspond with the typed date

of the 2005 PSA, but with the date upon which the 2005 PSA was signed by TMG.

Neither the record nor the Parks provide another document to which Addendum B might

refer. This is insufficient to demonstrate that the 2005 PSA did not include Addendum

B.


       The trial court properly concluded as a matter of law that the 2005 PSA complied

with the statute of frauds.   Therefore, the trial court did not abuse its discretion in

denying the Parks' motion for summary judgment.

 II.   Former Counsel Testimony

       The Parks argue that the trial court improperly compelled their former attorney,1

Gregory Home, to testify in response to questions from the jury. They contend that the


      1 Home represented the Parks during the 2004 negotiations, but not during the
2005 transaction. Home became their attorney again after the 2005 transaction closing

                                               8
No. 70064-2-1/9




court exacerbated this error by refusing to admit evidence that the Parks offered

regarding one of the questions. This court reviews the trial court's decision to admit or

exclude evidence for an abuse of discretion. State v. Gresham. 173 Wn.2d 405, 419,

269 P.3d 207 (2012).

          On direct examination, Han Park testified about advice that Home gave them

about the purchase price of the property. Park also testified that TMG paid Home to

represent the Parks. As a result of this testimony, the jury sought to ask Home two

questions. Despite the Parks' objections regarding the protections of the attorney-client

privilege, the court ordered Home to testify as to the two limited questions.             The

questions are as follows:

                Did you as an attorney provide a letter to Mr. Park stating a legal
          opinion that the $180,000 was in addition to the purchase price and was
          indeed part of the contract? And did this event, this opinion, occur in 2004,
          2005 or 2006?




               [M]r. Park testified that TMG, the McNaughton Group, retained you
          as their attorney, as the Parks [sic] attorney, on his behalf against his
          wishes. Did that occur?

Home responded to the first question by saying, "I don't recall." He responded, "No" to

the second question.

          The Parks then offered as an exhibit an e-mail containing Home's opinions about

the purchase price of the property. TMG objected, arguing that the e-mail was sent




failed.    He continued to represent the Parks through the early phases of the TMG
lawsuit.
No. 70064-2-1/10



postclosing and was therefore irrelevant.2 The trial court excluded the evidence on

relevancy grounds.

   A. Home's Testimony

       The Parks argue that the trial court erred in requiring Home to testify. They rely

on RCW 5.60.060(2)(a), which prohibits an attorney from testifying about professional

advice given to a client without the client's consent. But, a client waives the privilege as

to an entire confidential communication by testifying about part of that communication.

State v. Vandenberq. 19 Wn. App. 182, 186, 575 P.2d 254 (1978).

       Here, Han Park testified on direct examination that Home advised him that the

Parks were entitled to an increased purchase price and that TMG had paid Home to

represent the Parks. In doing so, he waived privilege as to Home's testimony on the

same subjects.

   B. Exclusion of E-mail


       The Parks argue that the trial court further erred in excluding as irrelevant the e-

mail containing Home's opinion.      Relevant evidence is that having any tendency to

prove or disprove a fact that is material to the determination of the action. ER 401. The

court concluded that, in order for the e-mail      to be relevant, the Parks would have

needed to rely on Home's opinion in deciding not to close on September 11—the date

of their alleged breach.     Because the e-mail was dated September 13, the court

reasoned, it was not relevant to the Parks' decision. The Parks' motive for refusing to

close on the sale was in dispute, and their breach was the central issue in the case. An



      2 While the e-mail is not provided in the record, based on the exhibit list it
appears to be dated September 13, 2006, two days after the closing date.

                                                10
No. 70064-2-1/11




e-mail sent after they refused to close would not necessarily prove or disprove the

Parks' motives or be relevant to breach. Without the e-mail in the record, the panel

cannot review it further.

          The trial court did not abuse its discretion in admitting Home's testimony or

excluding the e-mail containing his opinion.

 III.      Evidence of Previous Real Estate Transactions

          The Parks argue that the trial court erred in admitting two pieces of evidence

regarding their prior real estate transactions. A trial court has broad discretion in ruling

on evidentiary matters and will not be overturned absent manifest abuse of discretion.

Cox v. Spanqler. 141 Wn. 2d 431, 439, 5 P.3d 1265, 22 P.3d 791 (2000).

        A. Purchase and Sale Agreement

           The Parks first contest the admission of a contract involving their Edmonds

property, which the Parks attempted to sell to Michelle Construction, Inc. in 2001. The

Parks characterize the contract as evidence of "other acts" or "character traits" and

contend that it was inadmissible under ER 404(b).

           However, TMG offered the contract for impeachment purposes. ER 607 governs

the use of impeachment evidence and provides that the credibility of a witness may be

attacked by any party.        If a plaintiff's testimony places his credibility at issue, the
defendant may admit evidence to impeach the plaintiff's testimony.                 See, e.g..

Tamburello v. Deo't of Labor & Indus.. 14 Wn. App. 827, 828, 545 P.2d 570 (1976).

           Here, Han Park testified that he did not have a prior sales contract with Michelle

Construction.       The trial court found that, Park thus opened the door for TMG to

introduce the 2001 contract as impeachment evidence. The court also found that the


                                                   11
No. 70064-2-1/12




probative value outweighed the prejudicial effect.    The trial court did not abuse its

discretion in admitting this evidence.

   B. Appellate Opinion

       The Parks further challenge the admission of an appellate opinion demonstrating

that the Parks had tried to purchase a piece of property in 1979, but that the deal had

fallen through because of a dispute over contract terms. The Parks argue that this too

was inadmissible evidence of "other acts" or "character traits" under ER 404.

       Although evidence of prior acts are inadmissible to prove propensity on a

particular occasion, they may be admissible for other purposes, including proof of

motive, intent, modus operandi, or a common scheme or plan. Saldivar v. Momah. 145

Wn. App. 365, 395, 186 P.3d 1117 (2008). For example, a plaintiff may establish a

common plan or scheme using evidence that a defendant committed similar acts of

misconduct against similar victims under similar circumstances, jd. at 395.

       In Saldivar. the trial court excluded evidence that the defendants, two brothers,

used their similar appearances to impersonate each other in their professional lives.

See id. at 394. The appellate court found that the exclusion was improper, jd. at 396.

The court acknowledged that the proffered testimony would prove that the past

impersonation took place at a different location during a different time period,     jd.

However, it found that the evidence's importance was the fact that the brothers engaged

in professional impersonation—not when or where they did, or what harm ultimately

resulted, jd.

       Here, TMG offered the appellate opinion as evidence of the Parks' common

scheme or plan. TMG's theory was that, in both the present case and in 1979, the


                                              12
No. 70064-2-1/13



Parks attempted to enforce a contract term to which the other party had not initially

agreed.   Ultimately, the trial court admitted the opinion as evidence of a common

scheme or plan under ER 404(b).

       Like the evidence in Saldivar. the 1979 transaction is removed in time from the

present case.   See 145 Wn. App. at 396.        But, it demonstrates that the Parks had

engaged in similar behavior with a similar victim, suggesting that they had a common

scheme or plan in approaching real estate deals with developers. The trial court also

determined that the 1979 transaction had probative value that outweighed its prejudicial

effect. This evidence was properly admitted.3

      The trial court did not abuse its discretion in admitting evidence of the Parks'

previous real estate transactions.

IV.    Factual Issues Conclusively Determined

      The Parks contend that the trial court erroneously instructed the jury that three

factual issues were conclusively determined.4

      A proper jury instruction informs the jury about the applicable law and does not

mislead the jury. State v. Bennett. 161 Wn.2d 303, 307, 165 P.3d 1241 (2007). Where

no disputed facts exist about an issue, the court may decide that issue as a matter of



      3 Even if the trial court had erred in admitting this evidence, the error would be
harmless. An error in admitting evidence of bad acts is harmless if the improperly
admitted evidence is of little significance in light of the evidence as a whole. State v.
Fuller. 169 Wn. App. 797, 831, 282 P.3d 126 (2012), review denied. 176 Wn.2d 1006,
297 P.3d 68 (2013). Here, the appellate opinion was only one of many pieces of
evidence that TMG offered to support its allegations of breach of contract. Based on
this other evidence, the jury could have reasonably concluded that the Parks breached
the contract, even without evidence of the 1979 transaction.
       4 The Parks do not offer legal authority for their assignment of error. We infer
that they are asserting a constitutional right to have these issues decided by the jury.

                                                13
No. 70064-2-1/14




law. City of Seattle v. Davis. 174 Wn. App. 240, 245, 306 P.3d 961 (2012). This court

reviews the superior court's conclusions of law de novo for whether they are supported

by the findings of fact. In re Washington Builders Benefit Trust. 173 Wn. App. 34, 65,

293 P.3d 1206, review denied. 177 Wn.2d 1018, 304 P.3d 114 (2013).

       The Parks challenge the instruction's statement that the 2005 PSA's description

of the property was satisfactory. Whether an agreement violates the statute of frauds is

a question of law. Maier. 154 Wn. App. at 15. As discussed above, the 2005 PSA

contained a valid legal description of the property. The trial court was entitled to make

this determination and so instruct the jury.

       The Parks challenge the statement that substantial justification existed for TMG

to file a lis pendens. A lis pendens may be filed in an action affecting the title to real

property. RCW 4.28.320. A lis pendens is not proper where filed in anticipation of a

money judgment.      Bramall v. Wales. 29 Wn. App. 390, 395, 628 P.2d 511 (1981).

Substantial justification for a lis pendens exists where a claimant has a reasonable

basis in fact or in law to file the lis pendens. Udall v. T.D. Escrow Servs.. Inc.. 132 Wn.

App. 290, 303, 130 P.3d 908 (2006), reversed on other grounds. 159 Wn.2d 903, 154

P.3d 882 (2007).

       Here, TMG filed the lis pendens in its action seeking specific performance of the

2005 PSA.     TMG released the lis pendens upon amending its complaint to include

money damages. The trial court determined a contract existed and it was not disputed

that the Parks had not participated in closing. The trial court noted that TMG believed

that the Parks anticipatorily repudiated the 2005 PSA and breached by failing to close




                                                14
No. 70064-2-1/15



on the property. The court thus properly found that substantial justification existed to file

the lis pendens.

       The Parks challenge the jury instruction's statement that the purchase price of

the Parks' property was $2,425,000. TMG attached to its complaint a copy of the 2005

PSA, which demonstrates that the agreed purchase price for the property was

$2,425,000. In their answer, the Parks attached their own copy of the 2005 PSA, which

included an addendum reflecting that the parties agreed to raise the price to

$2,580,000.    This addendum bears only the Parks' initials.            TMG disputed the

addendum. In a pretrial order, the court found that the Parks failed to establish through

competent evidence that TMG agreed to increase the sale price. It therefore ruled as a

matter of law that the established contract price was $2,425,000.         The Parks again

attempted to introduce evidence concerning the sale price through the e-mail containing

Home's opinion. The court excluded that evidence. The challenged jury instruction

reflects the court's finding and the evidence presented about the purchase price of the

Parks' home.

       The court did not err in instructing the jury that these factual issues were

conclusively determined.

 V.    Attorney Fees

       The Parks request attorney fees and costs both at the trial level and on appeal.

RAP 18.1(a) permits an attorney fee request if "applicable law grants to a party the right

to recover" those fees. A party seeking fees under RAP 18.1 must support its request

with argument and citation to authority. Phillips Bldg. Co. v. An. 81 Wn. App. 696, 705,

915 P.2d 1146 (1996). The Parks do not do so. We deny their request for fees.


                                                 15
No. 70064-2-1/16




       TMG requests attorney fees under the fee shifting provision in the 2005 PSA.

Under RCW 4.84.330, the prevailing party in an action to enforce or defend a contract is

entitled to attorney fees and costs as provided by the contract. Reeves v. McClain. 56

Wn. App. 301, 311, 783 P.2d 606 (1989). The 2005 PSA provides that "[i]f Buyer or

Seller institutes suit against the other concerning this Agreement, the prevailing party is

entitled to reasonable attorneys' fees and expenses." TMG is the prevailing party here.

It is entitled to fees and costs on appeal.

       We affirm.




WE CONCUR:




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