                                                                FILED
                                                            DECEMBER 6, 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

NOEL MOON, a single woman,                  )         No. 33614-0-111
                                            )
                    Plaintiff,              )
                                            )
DERALD HAUCK, a single man,                 )
                                            )
                    Appellant,              )
                                            )
             V.                             )         UNPUBLISHED OPINION
                                            )
WILLIAM BARR and DIANA BARR,                )
husband and wife and their marital          )
community; JEANINE BURNS and                )
JOHN DOE BURNS, wife and husband            )
and their marital community; and SOLEIL     )
REAL ESTATE OF SPOKANE, LLC., a             )
Washington limited liability corporation,   )
                                            )
                    Respondents.            )

      LAWRENCE-BERREY, A.CJ. -        House purchaser Derald Hauck appeals the

summary judgment dismissal of his claims against house sellers William Barr and Diana

Barr, their real estate agent\daughter Jeanine Bums, and her employer Soleil Real Estate

of Spokane LLC (Soleil). The claims arose after Mr. Hauck's daughter, Noel .Moon,

discovered old animal feces and urine under newly installed carpet.
No. 33614-0-III
Moon v. Barr


           Circumstantial evidence supports Mr. Hauck's claim that Mr. Barr knew of and

fraudulently concealed the animal feces and urine. Circumstantial evidence also supports

Mr. Hauck's claim that Ms. Bums knew of and failed to disclose the concealed problem.

Further, a question of fact is presented as to whether Mr. Hauck, through his daughter,

made sufficient inquiry about the animal smell before he purchased the house.

           We conclude the trial court erred when it summarily dismissed Mr. Hauck's

fraudulent concealment and Consumer Protection Act (CPA), chapter 19.86 RCW, claims

against the defendants. But we conclude the trial court did not err when it summarily

dismissed Mr. Hauck's breach of contract claim against the Barrs and his negligent

misrepresentation claims against the defendants. We therefore reverse in part and affirm

in part.

                                            FACTS

           Because the trial court dismissed this case on summary judgment, we present the

facts and all reasonable inferences in the light most favorable to Mr. Hauck, the

nonmoving party.

           In 1996, the Barrs bought the subject house. The Barrs rented the house to one set

of tenants from 1996 to around 2010. Neighbors of the renters said the renters had pets,

and for several years allowed their pets to urinate and defecate throughout the house.

One of the neighbors said she would wear a different pair of shoes when she visited the

renters so she would not track animal urine or feces back into her own house. She said

her feet would actually sink in the floor due to the amount of urine and feces.


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       Mr. Barr visited the house once or twice a year when the renters needed repairs.

He was concerned about the condition of the house, and asked the renters to clean the

place up. He claims he never saw or smelled any animal feces or urine in the house.

       After the renters moved out in 2010, Mr. Barr went into the house and determined

it was a mess. There were holes in the wall, tears in the vinyl, and the carpets needed to

be replaced. Mr. Barr did a lot of the work himself. He bought new carpet and hired

carpet layers. He was in and out of the house after the layers removed the old carpet and

padding and before they installed the new carpet.

       Mr. Barr's daughter, Ms. Burns, was a real estate agent for Soleil. Mr. Barr asked

her to sell the house. Ms. Burns did not help prepare the house for sale. When deposed,

she said she went into the house only once while it was under repair. She noticed tarps

on the floor. She was inside for about two minutes, handed her father his lunch, and left.

The next time she saw the house it was "picture ready," and she took pictures of it to list.

Clerk's Papers (CP) at 397. She claims she never noticed any animal smells in the house.

       Ms. Burns listed the house in January 2012. The house was on the market for

about 12 months. During this time, Ms. Burns held two open houses for brokers only.

During one of the two open houses, one broker and one lender told her "they could smell

animal." CP at 402. The house was shown about 20 times to potential purchasers.

       Mr. Hauck became interested in buying the house for his daughter, Ms. Moon,

who lived in Montana. Ms. Moon wanted to move to Spokane so her disabled daughter

could be closer to health care facilities in Spokane. Ms. Moon, not her dad,


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Moon v. Barr


communicated with her dad's real estate agent and with Ms. Burns. This was because the

house was intended for her use, her dad's hearing was poor, and her dad had poor

telephone reception where he lived.

       On October 9, 2012, Mr. Hauck entered into a purchase and sale agreement to

purchase the property. The purchase and sale agreement listed Ms. Burns as the listing

agent, and Soleil as the listing broker. The agreement also contained an inspection

addendum, which conditioned the agreement "on Buyer's subjective satisfaction with

inspections of the Property .... " CP at 240.

       On October 18, 2012, Mr. Hauck had the property inspected. The property

inspection report noted "[a] very strong pet urine smell ... in the home. This smell

may be difficult to remove." CP at 23. Another comment noted that cats had accessed

the crawl space under the home and used the dirt floor as a litter box. As the sellers'

agent, Ms. Bums never received a copy of the home inspection report.

       A few days after the inspection, Ms. Moon discussed the entire inspection report

with the inspector for over an hour. Among other concerns, Ms. Moon was concerned

about the urine smell because she never smelled it. The inspector told her he had a

sensitive nose to dogs and cats. The inspector said the smell could be from cats using the

crawl space as a litter box. The inspector also said the smell could be on the painted

walls or trapped in the carpet itself from pets previously in the home.

       Ms. Moon and the inspector discussed the costs to remove the smell if the smell

was in the carpet. The inspector suggested Ms. Moon find out the type and quality of


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Moon v. Barr


wood that was under the carpet so she could have an idea of what it would cost to refinish

the floor if she decided to remove the carpet.

       Ms. Moon telephoned Ms. Bums to discuss the inspection report. Ms. Moon

discussed the urine smell the inspector noticed, and recapped the discussions she had with

the inspector. Ms. Burns claimed she did not notice a urine smell and had not seen any

pet stains. Ms. Moon said she was considering removing all of the carpet or repainting

the walls. Ms. Moon asked during this call, and later in a different conversation, what

kind of wood was under the carpet. In the later conversation, Ms. Burns said the Barrs

did not remember.

       Neither Mr. Hauck nor his daughter ever spoke with the Barrs prior to the sale of

the house. Almost all discussions were between Ms. Moon and Ms. Burns. This was

because Ms. Burns "made it clear that she was the only source of communication to her

clients." CP at 427.

       On November 5, 2012, Ms. Moon called Ms. Burns and explained she had

switched lenders and needed a new purchase and sale agreement. On November 10,

2012, the parties entered into a second agreement. Mr. Hauck's agent asked Mr. Hauck

to waive the inspection for purposes of the second agreement. Mr. Hauck signed the

waiver, agreeing that

       Buyer has been advised to obtain a building ... inspection, and to condition
       the closing of this Agreement on the results of such inspections, but Buyer
       elects to waive the right and buy the Property in its present condition.
       Buyer acknowledges that the decision to waive Buyer's inspection options



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No. 33614-0-III
Moon v. Barr


      was based on Buyer's personal inspection and Buyer has not relied on
      representations by Seller, Listing Broker or Selling Broker.

CP at 75.

      This second agreement included a seller disclosure statement. In that statement,

the Barrs did not disclose the existence of animal feces and urine under the new carpet.

They verified, other than those defects disclosed, there were no "other existing material

defects affecting the property that a prospective buyer should know about." CP at 81.

The disclosure statement further provided:

              A.      Buyer has a duty to pay diligent attention to any material
      defects that are known to Buyer or can be known to Buyer by utilizing
      diligent attention and observation.
              B.      The disclosures set forth in this statement and in any
      amendments to this statement are made only by the Seller and not by any
      real estate licensee or other party.
              C.      Buyer acknowledges that, pursuant to RCW 64.06.050(2),
      real estate licensees are not liable for inaccurate information provided by
      Seller, except to the extent that the real estate licensees know of such
      inaccurate information.

CP at 81.

      Ms. Moon visited the house at least two times before closing. Each time, she

noticed air fresheners in the house. Mr. Hauck and the Barrs signed closing documents in

mid-December 2012.

      Before moving into the house, Ms. Moon told Ms. Bums she was going to rent a

shampooer to clean the carpets. Ms. Bums said that, would not be necessary because the

carpets were brand new. Ms. Bums later told Ms. Moon she had been in the house prior

to it being cleaned and described the house as "'trashed.'" CP at 426.


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No. 33614-0-III
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       In January 2013, Ms. Moon and Mr. Hauck obtained the keys from Ms. Bums and

went through the house with her. Ms. Moon noticed multiple air fresheners inside the

home. She described them as "overpowering" and said they "burned [her] nasal

passages." CP at 428. Ms. Bums even sprayed air freshener as they walked through the

house. Ms. Bums told Ms. Moon she always sprayed houses that had been sitting closed.

Before leaving that day, Ms. Moon turned on the heat.

       Ms. Moon next went into the house in February 2013. The heating of the house

caused the animal smell to be very noticeable. She determined the smell did not emanate

from under the house. Ms. Moon then pulled up the new carpets and saw old animal

feces and urine.

       Mr. Hauck and Ms. Moon filed suit against the Barrs, Ms. Bums, and Soleil. They

asserted fraudulent concealment, negligent misrepresentation, and CPA claims against all

defendants. Mr. Hauck also asserted breach of the purchase and sale agreement against

the Barrs.

       After discovery, the defendants moved for summary judgment. The trial court

granted the motion. As to Ms. Moon, the trial court determined she did not have legal or

equitable standing because she was never a party to the purchase and sale agreement. As

to Mr. Hauck, the trial court determined he failed to make a reasonable inquiry of the

sellers concerning the animal smell made known to him by the inspection report.

       Only Mr. Hauck appeals.




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No. 33614-0-III
Moon v. Barr


                                        ANALYSIS

       This court reviews a summary judgment order de novo, engaging in the same

inquiry as the trial court. Kim v. Lakeside Adult Family Home, 185 Wn.2d 532,547,374

P.3d 121 (2016). Summary judgment is appropriate only if "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law." CR 56(c ). A material fact is one the outcome

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

(2004). This court views all facts and reasonable inferences from those facts in the light

most favorable to the nonmoving party. Kim, 185 Wn.2d at 54 7. Summary judgment is

appropriate only if reasonable persons could reach but one conclusion from all the

evidence. Id.

       When reviewing a civil case 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)); see also Gossett v. Farmers Ins. Co. of Wash., 133 Wn.2d 954,

973, 948 P.2d 1264 (1997). The burden of proof for negligent misrepresentation and

fraudulent concealment claims is clear, cogent, and convincing evidence. Barish v.

Russell, 155 Wn. App. 892, 905 n.7, 230 P.3d 646 (2010); Stieneke v. Russi, 145 Wn.

App. 544, 561, 190 P.3d 60 (2008). Thus, this court must determine whether, viewing


                                              8
No. 33614-0-III
Moon v. Barr


the evidence in the light most favorable to Mr. Hauck, a rational trier of fact could find

that he supported his fraudulent concealment and negligent misrepresentation claims with

clear, cogent, and convincing evidence. See Woody, 146 Wn. App. at 22.

       A.     FRAUDULENT CONCEALMENT

       Mr. Hauck argues the trial court erred in dismissing his fraudulent concealment

claim. A buyer of residential property bringing a claim for fraudulent concealment must

establish ( 1) the residential dwelling has a concealed defect; (2) the seller has knowledge

of the defect; (3) the defect is dangerous to the purchaser's property, health, or life;

(4) the defect is unknown to the purchaser; and ( 5) the defect would not be disclosed by a

careful, reasonable inspection by the purchaser. Alejandre v. Bull, 159 Wn.2d 674,689,

153 P.3d 864 (2007).

              1.     Concealed defect

       Here, Ms. Moon found pet feces and urine under the new carpet. The pet feces

and urine were thus concealed.

              2.     Sellers' and Ms. Burns 's knowledge

       Mr. Barr was inside the house during and after the time the old carpet and pad

were removed and the new carpet was installed. Construing the facts and all reasonable

inferences in the light most favorable to Mr. Hauck, a rational trier of fact could find by

clear and convincing evidence that Mr. Barr knew that pet feces and urine were under the

new carpet. Mr. Barr might have known this in one of at least three ways. First, he may

have seen the carpet installers lay the carpet over the floor without the floors being first


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No. 33614-0-III
Moon v. Barr


adequately cleaned. Second, he may have seen the condition of the floors and known that

the numerous years of pet urine and feces required the floorboards to be removed and

replaced to adequately remedy the condition. Third, he may have smelled the odor after

the new carpet was installed and have known the source of the smell was animal feces

and urine still under the new carpet. Although Mr. Barr denies he ever smelled animal

feces or urine, this is a fact peculiarly within his knowledge, and cross-examination

should be allowed so a jury can determine the credibility of his denial. See Arnold v.

Saberhagen Holdings, Inc., 157 Wn. App. 649, 661-62, 240 PJd 162 (2010); Riley v.

Andres, 107 Wn. App. 391, 395, 27 P.3d 618 (2001).

       Ms. Bums and Soleil argue they have no liability because Ms. Bums had no

knowledge of the animal feces and urine under the carpet. We agree there is no direct

evidence that Ms. Bums knew of the animal feces and urine. But we disagree that there

is no circumstantial evidence. Circumstantial evidence may support a finding of direct

knowledge. Waite v. Whatcom County, 54 Wn. App. 682, 687, 775 P.2d 967 (1989).

       Construing the evidence and all reasonable inferences in the light most favorable

to Mr. Hauck: (1) Ms. Bums described the house as "trashed," evidencing that she saw it

early, before her father had new carpet installed; (2) the years of excessive animal feces

and urine throughout the house would have produced a discemable smell, giving her

knowledge that pets had defecated and urinated on the floors and the old carpet; and

(3) as evidenced by her consistent and heavy use of air fresheners, she knew the

floorboards were not sufficiently cleaned prior to installation of the new carpet.


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Moon v. Barr


          Ms. Bums, similar to her father, denies ever smelling animal feces and urine. But

a trier of fact is not required to believe Ms. Bums, who may have seen and smelled the

house when it was in a trashed condition. Courts are reluctant to grant summary

judgment when material facts are particularly within the knowledge of the moving party.

Arnold, 157 Wn. App. at 661-62; Riley, 107 Wn. App. at 395. Here, there is

circumstantial evidence Ms. Bums knew the floorboards were not adequately cleaned of

animal feces and urine prior to being concealed by the new carpet. Although she disputes

this knowledge, a trier of fact should have the opportunity to consider her denial under

cross-examination to determine whether it believes her denial or the contradictory

circumstantial evidence.

                3.     Dangerous to purchaser's health

          Mr. Hauck did not purchase the house for his own use-he purchased it for his

daughter's use. Ms. Moon made clear to Ms. Bums that she was the intended occupant

of the house. The defendants do not assert we should limit this element to Mr. Hauck's

health. Because Ms. Bums knew Ms. Moon would be living in the house, we extend our

inquiry to whether the defect is dangerous to Ms. Moon's health.

          Mr. Hauck, through an industrial hygienist, presented evidence that would allow a

rational trier of fact to find by clear and convincing evidence that the presence of old

animal feces and urine likely cause conditions that would be dangerous to a person's

health.




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No. 33614-0-III
Moon v. Barr


              4.     Defect not known to purchaser

       The defect was not the smell. A smell is not dangerous to a person's health. The

defect, instead, was the old feces and urine under the carpets. There is no evidence that

Mr. Hauck or his daughter knew, before Mr. Hauck purchased the house, that there were

old animal feces and urine under the new carpets.

              5.     Defect not disclosed by careful, reasonable inspection

       Once a buyer discovers evidence of a defect, the buyer is on notice and has a duty

to make further inquiries. Douglas v. Visser, 173 Wn. App. 823, 832, 295 P.3d 800

(2013). Here, the home inspector smelled animal feces and urine, and he disclosed this to

Ms. Moon. Notice to Ms. Moon was notice to Mr. Hauck.

       The evidence is undisputed that Ms. Moon was her father's agent for purposes of

purchasing the house. She acted as his agent because the house was intended for her use,

her father had difficulty hearing on the telephone, and her father's telephone reception

was poor. The law required Mr. Hauck, directly or through his daughter, to make further

inquiries about the animal smell.

       The question presented here is whether Ms. Moon's discussion with Ms. Bums

concerning the inspection report failed, as a matter oflaw, to fulfill this duty. Summary

judgment is only proper if the question can be answered as a matter of law. To answer

this question, we tum to cases that have discussed this duty to inquire.

       In Alejandre, the home buyers had the septic system pumped before they

purchased the house. Alejandre, 159 Wn.2d at 679. The septic company employee who


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No. 33614-0-III
Moon v. Barr


pumped the tank noted on the bill that he was unable to inspect the back baffle, and added

there was "' [n]o obvious malfunction of the system at time of work done.'" Id.

(alteration in original). After the purchase, the drainfield failed. Id. at 680. The failure

was due to the back baffle missing, thus allowing sludge to enter the drainfield. Id. The

buyers brought suit, alleging negligent misrepresentation and fraudulent concealment. Id.

The trial court granted the seller's motion to dismiss at the end of the buyers' case. Id.

The Supreme Court affirmed the dismissal of the buyers' fraudulent concealment claim.

Id. at 691. The Supreme Court noted that trial testimony established an inspection of the

back baffle would have been simple, and a careful examination would have led to

discovery of the missing baffle. Id. at 690. Alejandre thus requires a house purchaser to

make a reasonable inspection.

       In Dalarna, an apartment building had chronic water leaks. Puget Sound Serv.

Corp. v. Dalarna Mgmt. Corp., 51 Wn. App. 209,210, 752 P.2d 1353 (1988). Because

of these leaks, the owner decided to sell the building. Id. at 211. The seller had several

conversations with the buyer, but never discussed defects or maintenance problems. Id.

The buyer had the building inspected. Id. The inspection revealed stains, cracked

plaster, and loose tiles. Id. The report stated, "' These leaks are not serious but should be

controlled by additional caulking outside and repainting and/or replastering inside.'" Id

The buyer purchased the building without making any further inquiries. Id. at 212.

       After spending $118,000 attempting to fix the leaks, the buyer sued for

constructive fraud, alleging that the seller failed to disclose "' substantial, chronic, and


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No. 33614-0-III
Moon v. Barr


unresolved water leakage problems.'" Id. The buyer agreed that it discovered evidence

of water leaks, but argued the true defect was the extreme, chronic nature of the leaks.

Id. at 214. The buyer characterized the extent of the problem as a separate defect. Id.

The Dalarna court held that when "an actual inspection demonstrates some evidence of

water penetration, the buyer must make inquiries of the seller." Id. at 215. The court

reasoned that the buyer knew there was a defect, but did not inquire about the defect or

establish that inquiries would have been fruitless. Id. The court further reasoned that the

extent of the damage itself was not a separate defect, and it was no defense that the defect

was worse than the buyer anticipated. Id. at 214-15. Dalarna thus requires a buyer with

notice of a defect to make some inquiry of the seller concerning the defect.

       In Douglas, the buyers learned through their home inspector of an area of wood

rot and decay near the roof line. Douglas, 173 Wn. App. at 826. The home buyers failed

to make any inquiries of the seller concerning possible wood rot. Id. After the purchase,

the buyers learned that the wood rot was much more extensive. Id. at 827. The trial

court heard the evidence and entered a verdict in favor of the buyers. Id. at 829. In

reversing the trial court, we noted:

       The Douglases ... were on notice of the defect and had a duty to make
       further inquiries. The Douglases argue that "they had no idea that 50 to
       70% of the sill plate and rim joist were destroyed" and that the area of rot
       that [their inspector] discovered was not unusual. That, however, is the
       precise argument we rejected in Dalarna. Once [buyers] discover[]
       evidence of a defect, they are on notice and have a duty to make further
       inquiries. They cannot succeed when the extent of the defect is greater than
       anticipated, even when it is magnitudes greater.



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Id. at 832. Douglas thus requires a buyer with notice of a defect to make some inquiry of

the seller concerning the defect.

       This case is dissimilar to Dalarna and Douglas. There, the buyers discovered

evidence of defects and failed to make any inquiry. Here, Ms. Moon discussed with Ms.

Bums the urine smell the inspector noticed and recapped the discussions she had with the

inspector. Because Ms. Bums was the Barrs' agent, and did not permit Mr. Hauck or Ms.

Moon to talk directly with them, inquiries made to her were inquiries made to the Barrs.

       The defendants imply that Ms. Moon was required to pointedly ask Ms. Bums to

disclose the location of the smell. But the defendants cite no case that requires such an

inquiry. Rather, the law requires the buyer to make further inquiry concerning what he or

she knows. Here, Ms. Moon learned that there was an animal smell emanating from

somewhere. She discussed what she knew with Ms. Bums. By discussing what she

knew with Ms. Bums, Ms. Bums was required to disclose her knowledge of the defect if

she knew, or to discuss Ms. Moon's comments with Mr. Barr so he could disclose his

knowledge of the defect. It is the seller's knowledge that a buyer is unaware of a

concealed material defect that gives rise to the seller's duty to speak. Alejandre, 159

Wn.2d at 689.

       This case is also dissimilar to Alejandre. There, the buyers did not conduct a

careful, reasonable inspection. Here, Mr. Hauck hired a professional inspector. Even the

professional inspector failed to find animal feces and urine under the carpet. Whether a

careful, reasonable inspection requires a potential buyer to pull up newly installed carpet


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to look for animal feces and urine is questionable, and surely cannot be answered as a

matter of law against the buyer. Here, a rational trier of fact could find by clear and

convincing evidence that Mr. Hauck, through Ms. Moon, conducted a careful and

reasonable inspection.

       B.     NEGLIGENT MISREPRESENTATION CLAIM AGAINST MS. BURNS AND SOLEIL

       Mr. Hauck argues the trial court erred when it dismissed his negligent

misrepresentation claim against Ms. Bums and Soleil. 1 More particularly, he argues Ms.

Bums failed to uphold her statutory duties under RCW 18.86.030(1) and chapter 64.06

RCW.

       RCW 18.86.030(1) defines duties owed by a real estate broker. A common law

tort cause of action is the vehicle through which a real estate buyer may recover damages

against an agent or a broker. Jackowski v. Borchelt, 174 Wn.2d 720, 735, 278 P.3d 1100

(2012). RCW 18.86.030(1) clarifies that the broker's duties are owed "to all parties to

whom the broker renders real estate brokerage services." Here, neither Ms. Burns nor

Soleil rendered real estate brokerage services to Mr. Hauck. Mr. Hauck hired his own

real estate agent. Thus, RCW 18.86.030(1) does not support Mr. Hauck's cause of action

against Ms. Burns or Soleil.

       Chapter 64.06 RCW sets forth various required seller disclosures pertaining to

different types of real estate sales. That chapter also provides buyers with limited rights

       1
        Mr. Hauck impliedly concedes the trial court correctly applied the economic loss
rule when it dismissed his negligent misrepresentation claim against the Barrs. His
concession is correct. See Alejandre, 159 Wn.2d at 689.

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No. 33614-0-III
Moon v. Barr


and remedies. But because Mr. Hauck did not argue to the trial court that Ms. Bums and

Soleil were liable to him under chapter 64.06 RCW, we do not consider his new

argument on appeal. See RAP 2.5(a).

       We conclude the trial court did not err when it dismissed Mr. Hauck's negligent

misrepresentations claims against Ms. Bums and Soleil.

       C.     CPA CLAIMS

       Mr. Hauck argues the trial court erred when it dismissed his CPA claim against the

Barrs, Ms. Bums, and Soleil. "A violation of the [CPA] exists when there is (1) an unfair

or deceptive act or practice (2) occurring in trade or commerce (3) with a public interest

impact (4) that proximately causes ( 5) injury to a plaintiff in his or her business or

property." Douglas, 173 Wn. App. at 834.

              1.     CPA liability against the Barrs

       The Barrs argue Mr. Hauck cannot establish there was an unfair or deceptive act

or practice. We disagree. We must consider the evidence and all reasonable inferences

most favorably to Mr. Hauck. Construing the evidence in this manner, Mr. Barr knew the

floorboards were badly damaged by animal feces and urine and concealed the damage

with new carpets.

       The Barrs appear to argue, alternatively, that nothing they did caused Mr. Hauck's

harm. They argue Mr. Hauck's failure to inquire and failure to do a careful, reasonable




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No. 33614-0-III
Moon v. Barr


inspection were the causes of Mr. Hauck's damages. But as we discussed previously,

such arguments raise genuine issues of material fact best left to the trier of fact. 2

              2.      CPA liability against Ms. Burns and Soleil

                      a.     Unfair or deceptive act or practice

       Ms. Bums and Soleil first argue they did not commit any unfair or deceptive act or

practice because Ms. Bums had no independent knowledge of the animal feces and urine

under the carpet. We have already addressed this argument and have determined that a

trier of fact could find she gained such knowledge when she first visited the house and

was later aware of the unabated smell. Again, a trier of fact should weigh her denial

under cross-examination.

                      b.     Public interest

       Ms. Bums and Soleil next argue the public interest element of Mr. Hauck's CPA

claim is not met. We disagree.

       In Svendsen v. Stock, 143 Wn.2d 546, 23 P.3d 455 (2001), a real estate agent

assisting the seller of residential property had actual knowledge that the property flooded

whenever a nearby storm drain became clogged with debris during heavy rains. Id. at

552. The real estate agent's knowledge arose independently of her assisting the seller

completing the seller disclosure statement. Id. When the seller and agent discussed how



       2
         The Barrs, both at summary judgment and on appeal, challenged Mr. Hauck' s
CPA claim only on the basis that he could not establish an unfair or deceptive act or
practice. Although we reverse the dismissal of Mr. Hauck's CPA claim against the Barrs,
the reversal is limited to the sole issue raised by the Barrs.

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No. 33614-0-III
Moon v. Barr


to complete the disclosure statement, the agent advised the seller not to disclose the

problem because the cause-debris in the storm drain-had been (temporarily) fixed. Id.

at 551. The agent added, there was no obligation to disclose a history of flooding

because it "' is not happening right now.' " Id. The seller therefore did not disclose the

flooding problem. Id. After closing, the buyers suffered substantial property damage as

a result of water flowing on their property when the nearby storm drain became clogged.

Id.

       A jury returned a verdict in favor of the buyers and against the real estate agent

and her employer for fraudulent concealment and violation of the CPA. Id. at 552. The

jury apportioned 95 percent of the fault to the real estate agent and her employer, and the

other 5 percent of fault to the seller. Id. We partially affirmed, determining that

substantial evidence supported fraudulent concealment. Id. We reversed the CPA claim.

Id. In reversing, we noted that RCW 64.06.060's language explicitly stated "'the

practices covered by this chapter are not matters vitally affecting the public interest for

the purpose of applying the [CPA]."' Id. at 553-54 (quoting RCW 64.06.060).

       The Svendsen court granted the buyer's petition for review and reversed our

dismissal of the CPA claim. Id. at 552, 560. In reversing, the Svendsen court noted three

things. First, RCW 64.06.070 did not extinguish a buyer's common law or statutory

cause of action. Id. at 556. Second, Washington courts had, prior to the enactment of

chapter 64.06 RCW, repeatedly held that real estate agents are subject to CPA liability for

not disclosing known material defects. Id. And third, the real estate agent was liable


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under the CPA because she had knowledge of the flooding problem independent of her

assisting the seller in completing the disclosure statement. Id. at 557.

       In analyzing the public interest requirement of a CPA claim, the Svendsen court

noted the four factors that a trier of fact must weigh:

       (1) [W]hether the acts were committed in the course of defendant's
       business; (2) whether the defendants advertised to the public; (3) whether
       the defendant actively solicited the plaintiff, indicating other potential
       solicitation of others; and (4) whether the parties occupied unequal
       bargaining positions.

Id. at 559. The court explained that none of the four factors are dispositive nor is it

necessary that all four factors be present. Id. The court noted that the real estate agent's

concealment was within the course of her business, and her employer advertised to the

public, but there was no unequal bargaining position. Id. The Svendsen court held that

such evidence was sufficient to establish the public interest requirement of the CPA. Id.

       We similarly hold that the facts presented by Mr. Hauck are sufficient to satisfy

the public interest requirement of his CPA claim. Construing the evidence and all

reasonable inferences in his favor, Ms. Bums's concealment was within the course of her

business, and Soleil advertised the property to the public when it listed the property for

sale. Such solicitation resulted in at least 20 potential purchasers, including Mr. Hauck,

learning of the property. We conclude the trial court erred in summarily dismissing Mr.

Hauck's CPA claim against Ms. Bums and Soleil.




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       D.     BREACH OF CONTRACT CLAIM

       Mr. Hauck argues he has shown a genuine issue of material fact as to each of his

other claims, and therefore his breach of contract claim survives. He fails to explain what

contract clause the Barrs supposedly breached. We will not consider such a vague

argument on appeal. See RAP 10.3(a)(6) (requiring arguments to contain citations to

legal authority and references to relevant parts of the record); Marin v. King County, 194

Wn. App. 795, 820, 378 P.3d 203 (2016) (finding that appellant's argument was too

vague to permit review).

      E.     ATTORNEY FEES AND COSTS ON APPEAL

      The Barrs request attorney fees on appeal pursuant to a provision in the purchase

and sale agreement. The provision provides, "if Buyer or Seller institutes suit against the

other concerning this Agreement the prevailing party is entitled to reasonable attorneys'

fees and expenses." CP at 54. The prevailing party in a contract action shall receive

attorney fees and costs when the contract authorizes such an award. RCW 4.84.330.

Subject to their compliance with RAP 18.l(d), the Barrs are awarded their reasonable

attorney fees. However, the only basis for a fee award is successfully defending against

Mr. Hauck's breach of contract claim. For this reason, their fee award is limited to those

fees reasonably necessary in defeating the contract claim. See Hume v. Am. Disposal

Co., 124 Wn.2d 656, 672, 880 P.2d 988 (1994).

      Ms. Burns and Soleil request attorney fees "pursuant to RAP 18.1 and 18.9." Br.

ofResp'ts Soleil Real Estate and Burns at 47. They fail to provide any argument in


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support of their fee request. We therefore deny their request. See RAP 18.l(b); Stiles v.

Kearney, 168 Wn. App. 250,267, 277 P.3d 9 (2012) (single sentence requesting attorney

fees, without argument or citation to authority, fails to comply with mandatory

requirements of RAP 18.l(b)).

           Mr. Hauck requests reasonable attorney fees pursuant to the purchase and sale

agreement. We affirm the dismissal of his contract claim. We therefore deny his request.

           Because each party partially prevailed on appeal, we determine no party is entitled

to an award of statutory costs on appeal.

                                         CONCLUSION

           The trial court erred when it summarily dismissed Mr. Hauck's fraudulent

concealment and CPA claims against the defendants. The trial court correctly summarily

dismissed Mr. Hauck's breach of contract claim against the Barrs and his negligent

misrepresentation claim against the defendants. We therefore reverse in part and affirm

in part.

           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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