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                                                                            FILED
                                                                           May 5, 2016
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

ZURIEL, INC., a Washington             )
corporation; EDWARD D. OCHOA, Jr.,     )                No. 32935-6-111
                                       )
                  Respondents,         )
                                       )
     v.                                )
                                       )                UNPUBLISHED OPINION
DAN GALBREATH and JANE DOE             )
GALBREATH, husband and wife;           )
DOUBLE UP RANCH, INC., a               )
Washington Corporation; GREG           )
GALBREATH and JANE DOE                 )
GALBREATH, husband and wife; 82        )
FARMS, INC., a Washington Corporation, )
                                       )
                  Appellants.          )

       KORSMO, J. -Respondents leased farmland to grow potatoes without being told

that appellants had treated the field with an herbicide that rendered the land unsuitable for

potato farming. We affirm the jury's verdict in favor of the lessees.

                                          FACTS

       Among their 6,000 acres of farm holdings, cousins Dan and Greg Galbreath and

their respective corporations (collectively Galbreath) hold a 20 year lease on 480 acres

belonging to the Ahem Family Revocable Trust. Since acquiring that lease in 2003, the
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    No. 32935-6-III
    Zuriel v. Galbreath


    Gal breaths have subleased portions of the 480 acres to Edward Ochoa, his father, and

    their corporation (collectively Ochoa).

           In 2012 the Galbreaths leased 130 acres of the Ahern property to Ochoa knowing

    that the Ochoas intended to r~ise potatoes. Dan Galbreath told Mr. Ochoa that the land

    would be good for potatoes. He apparently did not remember that his cousin had treated

    the 130 acre segment with Clopyralid when growing wheat on that field the previous

    year. The herbicide's producer had warned users against growing potatoes for 18 months

    in any field treated with Clopyralid.

           The potatoes were planted but the crop soon developed visible deformities. The

    Washington State Department of Agriculture (WSDA) investigated and took soil samples.

    WSDA found significant Clopyralid contamination in all of the samples, as well as some

    Picloram and Triclopyr contamination in two samples. Because of the Clopyralid

    contamination, the entire crop was unmarketable and the WSDA embargoed it.

           Ochoa filed suit against Galbreath on a theory of negligent misrepresentation

    based on Dan Galbreath's statement that the field was good for potatoes and his failure to

    disclose the herbicide application. The Galbreaths presented expert testimony that the

    concentration of Clopyralid was too high given the amount they had used, leading their

    expert to believe there must have been an additional source of contamination. At the
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    close of the testimony, the trial court directed a verdict for the plaintiffs on the issue of

    liability, but instructed the jury on questions of causation and damages. The court denied      •
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No. 32935-6-111
Zuriel v. Galbreath


a defense request to give instructions concerning federal regulations governing

Clopyralid, Picloram and Triclopyr contamination.

       The jury entered a verdict in favor of the Ochoas for $584,558.94. The Galbreaths

timely appealed to this court.

                                         ANALYIS

       The Galbreaths present two issues in this appeal. They first contend that the trial

court erred in directing a verdict on liability. They also contend that the court erred in

denying their requested instructions. We address the two issues in the order stated.

       Directed Verdict on Liability

       Galbreath claims that the doctrine of caveat emptor applies, requiring that Ochoa

show he had actual knowledge of the contamination. We disagree.

       This court reviews de novo a decision on a motion for a directed verdict. Schmidt

v. Coogan, 162 Wn.2d 488, 491, 173 P.3d 273 (2007). A directed verdict must be granted

where, viewing the evidence most favorably for the nonmoving party, the court can say

that there is not substantial evidence or a reasonable inference to sustain a verdict for the

nonmoving party. Davis v. Microsoft Corp., 149 Wn.2d 521, 531, 70 P.3d 126 (2003). A

party is liable in fraud where he knows his statements to be false and intends to deceive

the other party, and liable in negligence where his statements are innocently made but

without due care as to their truthfulness or accuracy. See Brown v. Underwriters at




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No. 32935-6-III
Zuriel v. Galbreath


Lloyd's, 53 Wn.2d 142, 145-153, 332 P.2d 228 (1958) (discussing the histories of and

differences between fraud and negligent misrepresentation).

       The elements of a claim of negligent misrepresentation that a plaintiff must

establish are:

       ( 1) the defendant supplied information for the guidance of others in their
       business transactions that was false, (2) the defendant knew or should have
       known that the information was supplied to guide the plaintiff in his
       business transactions, (3) the defendant was negligent in obtaining or
       communicating the false information, (4) the plaintiff relied on the false
       information, (5) the plaintiffs reliance was reasonable, and (6) the false
       information proximately caused the plaintiff damages.

Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007). This version of the tort

requires that the defendant affirmatively made an actual misrepresentation.

       A second version of the tort exists when the defendant fails to disclose material

information. The failure to disclose establishes negligent misrepresentation when the

party owes a duty to disclose. Van Dinter v. Orr, 157 Wn.2d 329, 333, 138 P.3d 608

(2006). This duty arises in several circumstances, including: ( 1) the existence of a

fiduciary relationship, (2) disclosure is necessary to prevent an incomplete statement

from being misleading, (3) the facts are within the knowledge of one party and not easily

ascertained by the other, (4) one party relies on the superior specialized knowledge of the

other, or (5) one party lacks business experience and the other would gain an unfair

advantage by remaining silent. Id. at 334.




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..


     No. 32935-6-III
     Zuriel v. Galbreath


             Ochoa pursued both theories of negligent misrepresentation at trial. The trial court

     did not identify which theory it relied on in granting the directed verdict. Since the

     record clearly establishes that Dan Galbreath made the false statement that the field was

     good for potatoes, and that statement suffices to support the directed verdict, we need

     only discuss the affirmative misrepresentation theory.

            Initially, however, we note that the Galbreaths confuse the two theories by

     asserting that caveat emptor mandates that plaintiffs show actual knowledge in order to

     establish a claim. The authority they cite involved a claim of fraud rather than

     negligence. See Burba v. Harley C Douglass, Inc., 125 Wn. App. 684, 697-698, 106

     P.3d 258 (2005). They do not cite, and we have not found, any authority to support an

     argument that actual knowledge is necessary in a claim of affirmative misrepresentation.

            The issue then was whether the Dan Galbreath statement supported the decision to

     direct a verdict on the question of liability. It did. Galbreath knew that Ochoa desired to

     lease the 130 acres in order to plant potatoes. He provided the information in order to

     help guide Ochoa into signing the lease. He negligently communicated the false

     information by not remembering or investigating his own previous use of the field the

     year before; if he had checked with his cousin he would have remembered that the field

     could not be used for potatoes that year. Ochoa relied on the information, and did so

     reasonably given that Galbreath himself was a veteran potato farmer who also worked

     that land.

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No. 32935-6-III
Zuriel v. Galbreath


       The Galbreath statement satisfied the five elements that establish the liability

prong of the negligent misrepresentation tort. They essentially were uncontested. The

trial court understandably directed the verdict for the plaintiffs on liability and left the

question of proximate cause (as well as damages, if necessary) for the jury to decide.

       The trial court did not err in directing the verdict on liability in favor of Ochoa.

       Jury Instructions

       Galbreath also argues that the trial court erred in failing to give their requested

instructions that federal law prohibited the sale of potatoes containing traces of the other

two herbicides found in the Ochoas potato field. 1 The trial court correctly recognized

that the information could only be used with respect to the defendant's intervening cause

argument and was irrelevant to the liability issue. The trial court did not abuse its broad

discretion in this area.

       Well settled law governs our review of jury instruction issues. Jury instructions

are sufficient if they correctly state the law, are not misleading, and allow the parties to

argue their respective theories of the case. State v. Dana, 73 Wn.2d 533, 536-537, 439

P .2d 403 ( 1968). The trial court also is granted broad discretion in determining the

wording and number of jury instructions. Petersen v. State, 100 Wn.2d 421, 440, 671

P.2d 230 (1983). Discretion is abused when it is exercised on untenable grounds or for



       1
           They do not assign error to the failure to give the Clopyralid instruction.

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     No. 32935-6-III
     Zuriel v. Galbreath


     untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

     A party is entitled to have its theory of the case presented to the jury by proper

     instructions if there is any evidence to support it. DeKoning v. Williams, 47 Wn.2d 139,

     141, 286 P.2d 694 (1955). However, it is not entitled to instructions that are irrelevant to

     the issues upon which the case is tried. Poston v. W Dairy Prods. Co., 179 Wash. 73, 88,

     36 P.2d 65 (1934).

            Here, the instructions were irrelevant to the issue of liability because Ochoa never

     claimed that the presence of any of the three herbicides was the basis for the negligent

     misrepresentation. Rather, it was the false statement concerning the condition of the field

     that was the basis for liability. Galbreath's application of the Clopyralid was evidence

     that he should have known that the land was unfit to use, but was not itself a basis for

     liability. The presence of other herbicides than the one that led WSDA to embargo the

     entire crop was a matter for the jury to consider when considering causation. The jury

     was properly instructed on superseding cause. Clerk's Papers at 302.

            The court had a very tenable basis for declining to give the instructions since they

     were not useful to the jury. The evidence of the other herbicides was relevant to

     Galbreath's causation defense and was properly argued to the jury in conjunction with the

     superseding cause instruction. There was no need for the additional instructions.

            The judgment is affirmed.




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No. 32935-6-111
Zuriel v. Galbreath


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



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