                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        February 25, 2020
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    REDSTONE BLACK LAKE 1, L.P, and                                 No. 51875-9-II
    REDSTONE BLACK LAKE 2, L.P. as
    successors in interest to Redstone
    Investments, LLC,

                                Appellant,

           v.

    GF CAPITAL REAL ESTATE
    FUND – INVESTMENT I, LLC,                                 UNPUBLISHED OPINION

                                Respondent.

         WORSWICK, J. — This case involves the sale of two commercial office buildings, Black

Lake 1 and Black Lake 2 (collectively, the BL Buildings). GF Capital Real Estate Fund-

Investment I LLC (GF Capital) sold the BL Buildings to Redstone Investments LLC1 (Redstone)

in 2014.

         In 2017, and after discovering water infiltration, rot, and mold throughout the BL

buildings, Redstone sued GF Capital, alleging that it had (1) breached warranties in the Purchase

and Sale Agreement (PSA) and “PSA Amendment,” (2) made negligent misrepresentations about

the properties, and (3) fraudulently concealed defects in the properties. The trial court granted

GF Capital’s motion for summary judgment dismissal on all three claims. The trial court also

awarded GF Capital attorney fees.



1
 Redstone Black Lake 1 L.P. and Redstone Black Lake 2 L.P. are the successors in interest to
Redstone Investments LLC.
No. 51875-9-II


       Redstone appeals, arguing that the trial court erred when it dismissed Redstone’s

fraudulent concealment claims and awarded attorney fees to GF Capital.2 GF Capital argues that

Redstone’s claims are barred by provisions in the PSA and PSA Amendment.

       We hold that (1) Redstone’s claims are not barred by the PSA, (2) a question of material

fact exists regarding whether the PSA Amendment bars Redstone’s claims, and (3) a question of

material fact exists regarding Redstone’s fraudulent concealment claim. Because we reverse

summary judgment dismissal of the fraudulent concealment claim, we also reverse the trial

court’s award of GF Capital’s attorney fees. Accordingly, we reverse and remand for further

proceedings.

                                            FACTS

A.     Overview

       GF Capital owned several commercial buildings, including two known as Black Lake 1

and Black Lake 2. In 2014, GF Capital and Redstone entered into a PSA for Redstone to

purchase the BL Buildings. The PSA allowed for a due diligence period, during which Redstone

inspected the BL Buildings and sought documentation from GF Capital. Following that due

diligence period, the parties executed a PSA Amendment to compensate for certain deficiencies

in the BL Buildings. A year and a half after the sale, Redstone discovered mold, rot, and decay

at the BL Buildings.




2
 Redstone does not appeal the trial court’s decision to dismiss Redstone’s breach of warranty or
negligent misrepresentation claims.


                                               2
No. 51875-9-II


          Redstone sued GF Capital alleging fraudulent concealment, negligent misrepresentation,

and breach of warranty. GF Capital moved for summary judgment seeking dismissal of all three

claims. In its opposition to summary judgement dismissal, Redstone identified mold, rot, and

decay as the defect in the BL Buildings. The trial court granted the summary judgment motion

and also awarded GF Capital attorney fees.

B.        GF Capital’s Ownership of the Buildings

          During GF Capital’s ownership of the BL Buildings, GF Capital employed Sierra

Property Management, owned by Brad McKinley, to manage some of its property, including the

BL Buildings. McKinley maintained the BL Buildings, sending monthly reports and bills to GF

Capital.

          Over the course of GF Capital’s ownership, the BL Buildings experienced reoccurring

issues regarding water intrusion, mold, and rot. McKinley periodically used contractors to

address these problems. On multiple occasions, Servpro dried out areas of the buildings and

remediated areas with mold.3 McKinley also used Stephen Passero’s company, Rainshine, to

address these water-related issues. During one of those repairs, Passero alerted McKinley to

rotten plywood behind the window flashings. McKinley instructed Passero to reseal the panels

and cover up the rotten wood.

          Before GF Capital put the BL Buildings on the market, McKinley proposed exterior

repairs to prevent water intrusion. There is no evidence that GF Capital completed those repairs.

GF Capital then listed the BL Buildings for sale along with an offering memorandum.




3
    The effectiveness of these remediation efforts was later contested by Redstone.


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No. 51875-9-II


C.     PSA, Due Diligence Period, and PSA Amendment

       1.      PSA

       GF Capital and Redstone entered into a PSA for the purchase of the BL Buildings, along

with two other buildings, for $16.5 million. Relevant here are the PSA’s paragraphs 8.2 and

23.6. Paragraph 8.2 of the PSA contained specific language regarding the condition of the BL

Buildings and Redstone’s release of claims against GF Capital. Paragraph 8.2 stated:

       EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SALE
       OF THE PROPERTY IS AND WILL BE MADE ON AN “AS IS,” “WHERE IS,”
       AND “WITH ALL FAULTS” BASIS, WITHOUT REPRESENTATIONS AND
       WARRANTIES OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR
       OTHERWISE, INCLUDING BUT NOT LIMITED TO THE DISCLAIMED
       MATTERS. THIS COVENANT SHALL SURVIVE CLOSING. Buyer
       speciﬁcally acknowledges and agrees that . . . Buyer . . . hereby waives, releases
       and discharges any claim or cause of action it has, might have had or may have
       against Seller, whether based on breach of contract, breach of applicable law, strict
       liability, tort, or any other legal or equitable theory or basis of liability with respect
       to: (i) the Disclaimed Matters, (ii) the condition of the Property as of the Closing
       Date, (iii) the past, present or future compliance of the Property with Environmental
       Laws or any other federal, state or local laws or regulations, . . . or (iv) any other
       state of facts that exists with respect to the Property.

Clerk’s Papers (CP) at 2272-73.

       The PSA also contained language regarding attorney fees in the event of litigation.

Paragraph 23.6 of the PSA stated:

       [I]f any action be commenced (including an appeal thereof) to enforce any of the
       provisions of this Agreement . . . then the unsuccessful party therein shall pay all
       costs incurred by the prevailing party therein, including reasonable attorneys’ fees
       and costs, court costs and reimbursements for any other expenses incurred in
       connection therewith . . . .

CP at 2289. Notably, the language in paragraph 8.2 did not specifically release fraud claims.




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No. 51875-9-II


       2.      Due Diligence Period

       The PSA allowed for a due diligence period. Redstone requested GF Capital’s

documentation of specific repairs to the BL Buildings. GF Capital failed to provide specific

documentation regarding repairs, although it possessed these documents.

       Redstone contacted Capitol Glass and Marx|Okubo (Marx) to inspect parts of the BL

Buildings. Capitol Glass submitted a quote for window repairs to Redstone, and Marx developed

a property condition assessment. During the due diligence period, Redstone was permitted to

conduct destructive testing, although it failed to conduct such tests.

       a.      Capitol Glass Window Quotes

       Ayaz Velji, Redstone’s vice president, e-mailed Capitol Glass, seeking a quote to reseal

and glaze the windows for the BL Buildings. Specifically, Velji asked for a quote “on re

caulking and re glazing all of the windows/seals” for BL buildings and an opinion on when that

work would need to be completed. Justin Perry, a Capitol Glass employee, responded on April

15, 2014. Perry provided three quotes: the first quote provided a price for replacing only the

failed window units of the BL Buildings, the second quote addressed fixing the failed units and

older scratched units in these buildings, and the third quote included checking “each window for

need of re seal, and or re anchor of break metal.”4 CP at 724. The third quote contained the

following language:




4
  “Break metal” are metal panels that act as dividers between windows. These are also referred
to as divider panels, spandrel panels, and metal panels. We use the term “break metal.”



                                                  5
No. 51875-9-II


       Window problems; most all of the window units in buildings 1 and 2 are very old
       and badly scratched they are not all failing at this time but it is a matter of time
       before they do fail. Some of the break metal between the windows is coming off
       and the caulking has failed both buildings need to be checked out and fix the break
       metal, re seal it and or re anchored.

CP at 724.

       Perry later explained that his quote related to checking “each window for need of re seal,

and or re anchor of break metal.” CP at 724. He stated that the unanchored break metal and

failed caulking created the potential for water and moisture getting into buildings. However,

Perry testified at his deposition that moisture contained in a failed double-paned window unit is

not a “concern getting into the building.” CP at 1091.

       b.      Marx Property Condition Assessment

       Before its inspection, Marx submitted a building condition questionnaire to GF Capital

that inquired about leaks and moisture intrusion. GF Capital declined to answer these questions.

       Marx employees inspected the BL Buildings in April 2014. Marx’s inspectors noted

numerous issues with the windows, the brick veneer, and signs of past water intrusion.

Regarding the buildings’ windows, the report noted, “The various methods of installation and

wet sealing suggest that there have been numerous repairs over the years due to water

infiltration.” CP at 773. Further, Marx “observed some metal coverings which had been sealed

as if they were a gasket, but the sealing there has little-to-no benefit when protecting the

windows from moisture infiltration.” CP at 53. However, a Marx inspector testified that the BL

Buildings’ window systems were part of a “ribbon window system.” CP at 1114. The inspector

stated that the ribbon window system should have been set up to move infiltrating moisture back

out to the building’s exterior.



                                                  6
No. 51875-9-II


       Marx’s report also identified issues with the brick veneer. Marx observed cracking,

spalling, and signs of past water infiltration. Marx did not observe evidence of wall moisture in

the buildings’ interiors, but recommended Redstone periodically investigate for cracks and

spalling to prevent water infiltration. Redstone’s efforts during the due diligence period did not

reveal evidence of mold, rot, or decay.

       3.      PSA Amendment

       After gathering information from Capitol Glass and Marx, Ali Nanji, Redstone’s

president, wrote in an e-mail to GF Capital’s real estate broker that the BL Building windows

were failing, “not just the seals but the water ingress.” CP at 788. Further, he wrote, “The

minimum was spent on these buildings, absolute minimum to keep them going.” CP at 789.

Nanji later clarified his message during his deposition, testifying that the water ingress he was

referring to was not water intrusion into the BL Buildings, but rather the water into the double-

paned glass that caused the window units to fog up and fail.

       As a result of the property condition assessment, Redstone requested amending the PSA

to lower the purchase price of the buildings. Redstone’s request for a lower price was based on

Redstone’s discovery of several property deficiencies, including the windows.

       The parties agreed to a PSA Amendment. The PSA Amendment listed deficiencies in the

BL Buildings, reduced the purchase price by $500,000, and contained a release regarding

“certain maintenance items” identified in an attached e-mail the parties termed the Property

Condition Email. CP at 794. The PSA Amendment contained language identical to the PSA’s

claim-release language regarding the properties’ deficiencies detailed in the Property Condition

E-mail. The PSA Amendment stated that Redstone released any claims against GF Capital



                                                 7
No. 51875-9-II


“based on breach of contract, breach of applicable law, strict liability, tort, or any other legal or

equitable theory or basis of liability.” CP at 794-95. The PSA Amendment release did not

specifically release fraud claims.

       The Property Condition E-mail detailed multiple deficiencies in the properties that were

not identified in the offering Memorandum. The Property Condition E-mail noted that “291

window units” in the BL Buildings would need to be replaced. CP at 798. Further, the Property

Condition E-mail noted that “additional units” required resealing. CP at 798. The Property

Condition E-mail listed the “Window System” as an additional repair cost of $235,000 not

previously identified in the offering Memorandum. CP at 798. The Property Condition E-mail

also stated, “Needless to say the window system and seals should have been regularly replaced

and serviced to avoid the accumulated costs currently being faced.” CP at 798.

D.     Redstone’s Ownership of the Buildings

       Redstone purchased the BL Buildings in April 2014. Eighteen months later, in October

2015, Plastering Plus Northwest inspected the BL Buildings and found water damage, rot, and

mold behind windows and walls. It appears from our record on appeal that Redstone did not

remediate these issues following Plastering Plus Northwest’s inspection.

       About a year later, Redstone discovered additional mold, rot, and decay inside the wall

cavities of the BL Buildings that was hidden until it opened a wall during the course of a tenant

improvement project. Following the discovery of this mold and rot, JRS Engineering inspected

the BL Buildings. JRS Engineering concluded that the water intrusion and ensuing mold and rot

was most likely caused by the exterior break metal panels between the windows and the joints by

which the break metal panels are attached. The mold, rot, and decay caused the BL Buildings’



                                                   8
No. 51875-9-II


tenant to vacate the premises. Redstone estimated the cost to repair the BL Buildings at over $3

million dollars.

         One of the Plastering Plus Northwest inspectors testified in a deposition about his

October 2015 findings. He stated that it was highly likely that the water damage, mold, and rot

he discovered in October 2015 was present when the sale took place in April 2014. Further,

Passero testified that the rot had developed over the course of years, back to GF Capital’s time as

owner.

E.       Procedural History

         Redstone sued GF Capital alleging fraudulent concealment, negligent misrepresentation,

and breach of warranty. GF Capital moved for summary judgment dismissal on all three claims.

         The trial court granted GF Capital’s motion for summary judgment dismissal. The trial

court awarded GF Capital attorney fees based on the attorney fee provision in the PSA, RCW

4.84.330, and RCW 4.84.010. Redstone appeals the summary judgment dismissal of its

fraudulent concealment claim and the award of attorney fees.

                                            ANALYSIS

                            I. SUMMARY JUDGMENT LEGAL PRINCIPLES

         We review summary judgment decisions de novo and perform the same inquiry as the

superior court. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013).

We view the evidence, and all reasonable inferences therefrom, 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 where there is no genuine issue as to any material fact, and the moving

party is entitled to a judgment as a matter of law. CR 56(c). A material fact is one upon which



                                                  9
No. 51875-9-II


the outcome of the litigation depends. In re Estate of Black, 153 Wn.2d 152, 160, 102 P.3d 796

(2004).

          A defendant is entitled to summary judgment if (1) the defendant shows the absence of

evidence to support the plaintiff’s case and (2) the plaintiff fails to come forward with evidence

creating a genuine issue of material fact on an element essential to the plaintiff’s case. Clark

County Fire Dist. No. 5 v. Bullivant Houser Bailey PC, 180 Wn. App. 689, 699, 324 P.3d 743

(2014). Where reasonable minds could reach but one conclusion from the admissible facts,

summary judgment should be granted. Elliott Bay Seafoods, Inc. v. Port of Seattle, 124 Wn.

App. 5, 12 n.2, 98 P.3d 491 (2004).

                II. “AS IS” CLAUSE AND RELEASES IN THE PSA AND PSA AMENDMENT

          As a threshold issue, GF Capital argues that language in the PSA and PSA Amendment

bars Redstone’s claims. Specifically, GF argues that the “as is” clause, the PSA release, and the

PSA Amendment release bar Redstone’s claims. Br. of Resp’t at 21. We hold that Redstone’s

fraud claims are not barred by the PSA. However, Redstone raises an issue of material fact

regarding whether the PSA Amendment bars its claims.

A.        PSA Does Not Preclude Fraudulent Concealment Claims

          GF Capital argues that the “as is” clause and the general release contained in the PSA bar

Redstone’s fraudulent misrepresentation claims. We disagree.

          1.     “As is” Clause

          A purchase and sale contract containing an “as is” clause does not immunize a seller from

fraudulent concealment liability. Sloan v. Thompson, 128 Wn. App. 776, 790, 115 P.3d 1009

(2005). “Although courts routinely enforce such ‘as is’ clauses allocating the risk of unknown



                                                  10
No. 51875-9-II


defects to the buyers, to do so where the sellers knew about the defects and withheld material

information would be to blindly enforce a contract of questionable provenance, obtained by

fraudulent concealment.” Sloan, 128 Wn. App. at 790.

        Here, the PSA stated that the sale of the property was made on an “as is” and “with all

faults” basis, and “without representations . . . of any kind.” CP at 2273. However, because

Redstone alleges that GF knew and failed to disclose certain defects, this language does not

shield GF Capital from Redstone’s fraudulent concealment claim. Sloan, 128 Wn. App. at 790.

Accordingly, the “as is” clause does not bar Redstone’s fraudulent concealment claim.

        2.      PSA Release

        A party may release claims against another through contract. See Hawkins v. EmpRes

Healthcare Mgmt., LLC, 193 Wn. App. 84, 93, 371 P.3d 84 (2016). Where general language in a

release is followed by specific recitals, such recitals restrict the general language. Hawkins, 193

Wn. App at 96. Moreover, parties must clearly and affirmatively express their intent to release a

fraud claim. Hawkins, 193 Wn. App. at 99. “At a minimum, if one party is to be held to release

a claim for fraud in the execution of the release itself, the release should include a specific

statement of exculpatory language referencing fraud.” Hawkins, 193 Wn. App. at 99 (quotation

marks omitted) (quoting Living Designs, Inc. v. E.I DuPont de Nemours & Co., 431 F.3d 353,

371 (9th Cir. 2005)).

        The PSA release stated that Redstone released any claims against GF Capital “based on

breach of contract, breach of applicable law, strict liability, tort, or any other legal or equitable

theory or basis of liability with respect to . . . the condition of the Property.” CP at 2273. This

specific language listing claims restricts the general language of the PSA release. Hawkins, 193



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No. 51875-9-II


Wn. App at 96. Although the PSA release states that Redstone released tort claims generally, the

PSA did not include language specifically waiving fraud claims. As a result, we hold that the

PSA release does not preclude Redstone’s fraudulent concealment claims.

B.      PSA Amendment Release Does Not Preclude Fraudulent Concealment Claims

        GF Capital argues that because the PSA Amendment release specifically addressed

claims arising from the BL Buildings’ window deficiencies, Redstone’s claims are barred. We

hold that there is a material question of fact on this issue.

        The release in the PSA Amendment applied to “certain maintenance items identified in

[the Property Condition E-mail].” CP at 794. The Property Condition E-mail detailed multiple

deficiencies in the properties that were not identified in the offering memorandum. The Property

Condition E-mail noted that “291 window units” in the BL Buildings would need to be replaced.

CP at 798. Further, the Property Condition E-mail noted that “additional units” required

resealing. CP at 798. Summarizing the deficiencies, the Property Condition E-mail listed the

“Window System” as an additional repair cost of $235,000 not previously identified in the

offering memorandum. CP at 798. The author of the Property Condition E-mail also stated,

“Needless to say the window system and seals should have been regularly replaced and serviced

to avoid the accumulated costs currently being faced.” CP at 798.

        Here, the parties disagree about the terms “window units” and “window systems” within

the Property Condition E-mail. Br. of Appellant at 30; Br. of Resp’t at 25. The Property

Condition E-mail uses both terms. Also relevant to the parties’ disagreement is Nanji’s e-mail

stating that the BL Building windows were failing, “not just the seals but the water ingress.” CP

at 788. Nanji testified that the water ingress he was referring to was not water intrusion into the



                                                  12
No. 51875-9-II


BL Buildings’ windows generally, but rather the water into the double-paned glass that caused

the window units to fog up and fail.

       Redstone argues that the window deficiencies addressed in the Property Condition E-mail

relate to the failed window units identified by Capitol Glass. These window units had failed

because seals for the double-paned glass panels let moisture in between the panes of glass, which

fogged up the windows. Redstone argues that this water ingress between the glass panels is the

work priced in Capitol Glass’s quotation. As a result, Redstone argues that this is the issue with

the windows Nanji described. Redstone argues that the PSA Amendment did not include water

intrusion or mold, rot, and decay that resulted from the break metal and failed seals of the overall

window systems. As such, Redstone argues that the claimed defects were not part of the PSA

Amendment release.

       Conversely, GF Capital argues that it reduced the purchase price in exchange for

Redstone’s release of all claims regarding a broad interpretation of the term “window system.”

According to GF Capital, “window system” includes the seals, glaze, and break metal. In other

words, “window system” refers to the window and surrounding frame. Based on this

interpretation, GF Capital argues that Nanji’s e-mail referencing the failing BL Buildings’

windows, seals, and the ensuing “water ingress,” shows that the window deficiency stated in the

PSA Amendment was based on the water intrusion resulting from the failed window systems.

       We hold that there is a material question of fact regarding which window deficiencies are

covered by the PSA Amendment. Based on the Capitol Glass quote, Redstone’s position that the

PSA Amendment covers only the window units could be correct. Alternatively, GF Capital’s

position that the Property Condition E-mail purposefully used the “window system” to include



                                                13
No. 51875-9-II


the entire window systems, not just the glazing, could be correct. This factual dispute cannot be

resolved on summary judgment.

       We hold that a question of material fact exists regarding what deficiencies were

encompassed under the PSA Amendment release.

                                 III. FRAUDULENT CONCEALMENT

       At oral argument, Redstone clarified that the allegedly concealed defect was “leakage at

the area of the metal panels and at the window flashing.”5 Redstone argues that the trial court

erred when granting summary judgment dismissal because GF Capital fraudulently concealed

water intrusion that resulted in mold, rot, and decay. We hold that issues of material fact remain

regarding water intrusion.

A.     Fraudulent Concealment Legal Principles

       Fraudulent concealment occurs when (1) there is a concealed defect in the premises; (2)

the seller had actual knowledge of the defect at the time of the sale; (3) the defect is dangerous to

the property, health, or life of the buyer; (4) the buyer does not know of the defect; and (5) a

careful, reasonable inspection of the premises by the buyer would not disclose the defect. Obde

v. Schlemeyer, 56 Wn.2d 449, 452, 353 P.2d 672 (1960). Where the defect is apparent, a buyer

cannot make a fraudulent concealment claim. Stieneke v. Russi, 145 Wn. App. 544, 561, 190

P.3d 60 (2008). “Once a buyer discovers evidence of a defect, they are on notice and have a duty

to make further inquiries.” Douglas v. Visser, 173 Wn. App. 823, 832, 295 P.3d 800 (2013). A




5
 Wash. Court of Appeals oral argument, Redstone Black Lake 1, L.P. v. GF Capital Real Estate
Fund-Investment I, LLC, No. 51875-9-II (Sept. 19, 2019), at 2 min., 40 sec. (on file with court).



                                                 14
No. 51875-9-II


buyer cannot succeed even when the extent of the defect is much greater than anticipated.

Douglas, 173 Wn. App. at 832.

       The burden of proof for fraudulent concealment claims is clear, cogent, and convincing

evidence. Stieneke, 145 Wn. App. at 561. When reviewing a case on summary judgment in

which the standard of proof is clear, cogent, and convincing evidence, this court “‘must view the

evidence presented through the prism of the substantive evidentiary burden.’” Woody v. Stapp,

146 Wn. App. 16, 22, 189 P.3d 807 (2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Thus, on summary judgment, we must

determine, viewing the evidence in the light most favorable to Redstone, whether a rational trier

of fact could find that it supported its fraudulent concealment claims with clear, cogent, and

convincing evidence. See Woody, 146 Wn. App. at 22. In evaluating an order of summary

judgment, we consider only the evidence and issues called to the attention of the trial court.

RAP 9.12.

B.     Material Issues of Fact Exist on Redstone’s Fraudulent Concealment Claim

       Redstone argues that GF Capital fraudulently concealed that the BL Buildings

experienced water intrusion from the break metal in the window systems. To prevail on this

claim at trial, Redstone would have to prove that (1) there was water intrusion in the premises at

the time of the sale; (2) GF Capital had actual knowledge of water intrusion at the time of the

sale; (3) this condition is dangerous to property, health, or life; (4) Redstone did not know of the

water intrusion at the time of the sale; and (5) a careful, reasonable inspection of the premises by

Redstone would not have disclosed the condition.




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No. 51875-9-II


         GF Capital argues that the water intrusion was not concealed and Redstone had notice of

water intrusion and knowledge of leaks, so this defect was known to Redstone. We hold that

there are genuine issues of material fact regarding GF Capital’s knowledge of water intrusion at

the time of the sale, Redstone’s knowledge of water intrusion through the break metal of the

window systems, and whether a reasonable inspection would have revealed the water intrusion.

Accordingly, we reverse summary judgment dismissal of Redstone’s fraudulent concealment

claim.

         1.     Concealed Water Intrusion Through Window System Break Metal Caused
                Dangerous Conditions

         The first and third elements are not at issue here. Redstone argues that water intrusion

was a concealed defect at the time of the sale and that mold, rot, and decay caused by the water

intrusion were dangerous to the BL Buildings. GF Capital does not contest that these elements

were met.

         2.     GF Capital’s Knowledge of the Water Intrusion

         Regarding the second element, Redstone argues that GF Capital knew about the water

intrusion from the break metal at the time of the sale. We hold that an issue of material fact

exists regarding GF Capital’s knowledge of the water intrusion.

         Before the parties completed the sale, GF Capital knew of repeated water intrusion issues

in the buildings. At different times, Servpro and Passero worked to remediate water intrusion

and the resulting mold or rot issues. However, Redstone submitted an affidavit from a certified

industrial hygienist who pointed out the deficiencies in these remediation efforts. The hygienist

stated that GF Capital should have opened up the walls to conduct water testing to determine the

source of the leak. Instead, GF Capital merely removed moisture with humidifiers and cleaned


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No. 51875-9-II


exposed surfaces. Additionally, Passero, one of GF Capital’s subcontractors, covered up wet and

rotten wood underneath the break metal at McKinley’s direction. Further, before GF Capital put

the BL Buildings on the market, McKinley proposed exterior repairs to prevent water intrusion.

There is no evidence that GF Capital completed these repairs. Here, taking the evidence in a

light most favorable to Redstone, there is a genuine issue of material fact as to whether GF

Capital had knowledge of water intrusion at the time of the sale.

       3.      Redstone’s Knowledge of the Water Intrusion

       Regarding the fourth element, Redstone argues that it lacked knowledge of the water

intrusion. We hold that there is an issue of material fact regarding Redstone’s knowledge of

water intrusion through the break metal of the window systems at the time of the sale.

       During the due diligence period, Redstone hired two companies that performed

inspections. Capitol Glass examined the windows of the BL Buildings. Capitol Glass provided

a quote on recaulking and reglazing all of the windows and seals. In the quote, Capitol Glass

stated, “Some of the break metal between the windows is coming off and the caulking has failed

both buildings need to be checked out and fix the break metal, re seal it and or re anchored.” CP

at 724. During his deposition, Perry testified that the potential problem with break metal or

failed caulking was water and moisture getting into the buildings.

       Redstone also had Marx conduct an inspection of the BL Buildings. Marx’s inspectors

noted numerous issues with the windows and past signs of water intrusion. Regarding the

buildings’ windows, the report notes, “The various methods of installation and wet sealing

suggest that there have been numerous repairs over the years due to water infiltration.” CP at




                                                17
No. 51875-9-II


773. Marx did not observe interior evidence of wall moisture, but stated that Redstone should

periodically investigate for cracks and spalling to prevent water infiltration.

       Here, neither report uncovered water intrusion from the break metal at the time of the

sale. Redstone knew that the caulking and sealing around the windows was defective and that

break metal between the windows was coming off. But, this knowledge is not the same as

knowledge of water intrusion. Window systems can be structured with ribbon systems or other

water redirection methods. These methods can prevent water from infiltrating the building

cavity even when water gets through failed sealant or caulking. Taking the evidence in a light

most favorable to Redstone, there is a question of material fact regarding whether Redstone

knew about the water intrusion through the window system break metal at the time of the sale.

       4.      Discovery of the Water Intrusion by a Careful, Reasonable Inspection

       Regarding the fifth element, Redstone argues that a reasonable inspection could not have

revealed the water intrusion and resulting mold, rot, and decay. We hold that a question of

material fact exists regarding the reasonableness of Redstone’s inspection during the due

diligence period.

       Reasonableness is typically a question for the fact finder. Old City Hall LLC v. Pierce

County AIDS Found., 181 Wn. App. 1, 10, 329 P.3d 83 (2014). However, we can affirm a trial

court’s grant of summary judgment when no reasonable fact finder could find the conduct

unreasonable. Old City Hall, 181 Wn. App. at 10.




                                                 18
No. 51875-9-II


       Here, Redstone engaged Capitol Glass and Marx to inspect the properties. Although

these inspections alerted Redstone to past water intrusion, the due diligence period did not reveal

evidence of present water intrusion. However, an inspector from Plastering Plus stated that it

was highly likely that the water damage, mold, and rot he discovered in October 2015 was

present when the sale took place in April 2014. Taking the evidence in a light most favorable to

Redstone, there is an issue of material fact regarding whether a careful, reasonable inspection

would have revealed water intrusion and the resulting the mold, rot, and decay.

       GF Capital argues that this court should hold, as a matter of law, that a reasonable and

careful inspection under the facts of this case necessarily would have included destructive

testing. This is because Redstone failed to exercise its right to conduct destructive testing, and

GF Capital contends that this testing would have revealed the mold, rot, and decay which

resulted from the water intrusion. However, such an inquiry is for a fact finder to determine.

We hold that the trial court erred when dismissing Redstone’s fraudulent concealment claim

because material issues of fact exist regarding GF Capital’s knowledge of water intrusion at the

time of the sale, Redstone’s knowledge of water intrusion through the break metal of the window

systems, and whether a reasonable inspection would have uncovered the defect.

                            V. ATTORNEY FEES AT THE TRIAL COURT

       Redstone argues that the trial court improperly awarded GF Capital attorney fees because

the fraudulent concealment and negligent misrepresentation claims were not “on the contract.”

Br. of Appellant at 43. On appeal, Redstone concedes that the breach of warranty claim is

covered by the PSA fee provision. However, Redstone argues that GF Capital did not properly

segregate its fees from defending the breach of warranty claims from its fees from defending the



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fraudulent concealment and negligent misrepresentation claims. Because we reverse the trial

court’s summary judgment dismissal of Redstone’s fraudulent concealment claim, the attorney

fees issue is not yet ripe, and we strike the trial court’s order granting GF Capital’s attorney fees

award.

         Here, the award of attorney fees depends on a determination of who prevailed. The PSA

attorney fee provision states, “[I]f any action be commenced . . . to enforce any of the provisions

of this Agreement . . . then the unsuccessful party therein shall pay all costs incurred by the

prevailing party.” CP at 2289.

         Because we reverse the trial court’s grant of summary judgment dismissal of the

fraudulent concealment claim, a prevailing party is yet to be determined, and we remand to the

trial court to strike the attorney fee award. The trial court’s award of attorney fees was based on

GF Capital successfully defending against all of Redstone’s claims. However, our reversal of the

trial court’s summary judgment dismissal of Redstone’s fraudulent concealment claim materially

affects the trial court’s determination. Accordingly, we remand to the trial court to strike the

award of attorney fees and conduct further proceedings.

                                  VI. ATTORNEY FEES ON APPEAL

         On appeal, GF Capital requests attorney fees based on the PSA and RAP 18.1. For the

reasons stated above, we decline to award GF Capital attorney fees on appeal.

         We reverse the trial court’s grant of summary judgment dismissal.




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No. 51875-9-II


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                    Worswick, J.
 We concur:



 Lee, A.C.J.




 Cruser, J.




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