Richard Nau, V Nancy K. Vogel As Trustee For Mark O Vogel ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RICHARD NAU, a single man, No. 82544-5-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
NANCY K. VOGEL, as trustee for the
Mark O. Vogel Residuary Trust; and
WEST REALTY, INC., a Washington
corporation,
Respondents.
ANDRUS, A.C.J. — In the course of selling her Hood Canal property to
Richard Nau, Nancy Vogel disclosed that a historic cemetery existed on the land.
West Realty, Inc. (West Realty), Nau’s real estate agent, gave him copies of
Vogel’s disclosure forms regarding this cemetery. Nau agreed to investigate this
cemetery as part of a feasibility contingency. He then waived this contingency,
elected to proceed with the transaction, and took possession of the property in
February 2016.
In October 2017, Nau sued Vogel and West Realty claiming that they
misrepresented the location of the cemetery and failed to disclose to him the
Skokomish Tribe’s interest in it. In a series of summary judgment orders, the trial
court dismissed Nau’s claims, imposed CR 11 sanctions, and awarded fees to
No. 82544-5-I/2
Vogel. Nau appeals. Because Nau failed to create issues of fact on the essential
elements of his claims and the trial court did not abuse its discretion in imposing
sanctions against him, we affirm.
FACTS
In 2015, Nau hired Patricia Lewallan of West Realty as his real estate agent
to assist in purchasing Vogel’s two Hood Canal parcels, Lots 103 and 104 of the
Potlatch Beach Tracts in Mason County. The property contained a house, and a
garage, and was adjacent to a historic cemetery known as Potlatch Cemetery.
Nau viewed the property twice before making an offer. During the first visit,
Lewallen told Nau that there was a cemetery on the property and may have pointed
to “a small cluster of headstones in an area located 40 to 50 feet away from the
house and garage.” On the second visit, Nau walked the property with Vogel and
Lewallen. Vogel told Nau “there is a cemetery that extends onto [the] property”
and she shared “where [she] thought the cemetery boundary was.”
Shortly after the second property visit, Vogel’s agent gave Lewallen a
“Seller’s Disclosure Statement Improved Property Form 17” (Form 17) dated
March 15, 2015. In pertinent part, Vogel disclosed:
Potlatch Cemetery
To the best of my knowledge, there is an area approximately 70’x70’
partially on my lot 103 and partially on my neighbor Lois Culik’s lot
102 that was designated “Potlatch Cemetery” on the original plat.
The cemetery comprises five gravestones of the Walker missionary
family dating late 1800’s to early 1900’s. The cemetery is excluded
from my tax bill. Lois remembers the tribe moving a number of
Indian[1] remains from the cemetery and transferring them to a
different Indian burial site around mid-1900, leaving the missionary
1 We use the term “Indian” because it is used in the documents contained in the record. We
intend no disrespect.
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headstones. The tribe surveyed the cemetery in early 2000, but they
do not have access to the cemetery, and have only visited once or
twice, with my permission, in the last 15 years. Neither the tribe nor
county maintain the grounds. Also visiting twice during the last 20
years was a small South Sound College class studying early settler
gravesites.
On November 1, 2015, Lewallen and Nau met to discuss the property.
Lewallen advised Nau of the importance of investigating the cemetery and
specifically told “him to inquire with Mason County and consider commissioning a
survey of the property.” That same day the parties entered into a real estate
purchase and sale agreement (REPSA) but, based on his earlier conversation with
Lewallen, Nau conditioned the sale on the satisfaction of a Feasibility Contingency
Addendum that stated “[b]uyer will look into Shoreline requirements and the graves
on the property tax parcel #42226-12-60050.” The contingency gave Nau 30 days
to determine if the property was suitable for his intended purposes. Nau also
signed the “Buyer’s Acknowledgement” section of Form 17, which stated:
Buyer hereby acknowledges that:
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 real estate
licensees know of such inaccurate information.
D This information is for disclosure only and is not intended to
be a part of the written agreement between the Buyer and
Seller.
E Buyer (which term includes all persons signing the “Buyer’s
acceptance” portion of this disclosure statement below) has
received a copy of this Disclosure Statement (including
attachments, if any) bearing Seller’s signature(s).
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F If the house was built prior to 1978, Buyer acknowledges
receipt of the pamphlet Protect Your Family from Lead in Your
Home.
....
BUYER HEREBY ACKNOWLEGES RECEIPT OF A COPY OF THIS
DISCLOSURE STATEMENT AND ACKOWLEDGES THAT THE
DISCLOSURES MADE HEREIN ARE THOSE OF THE SELLER
ONLY, AND NOT OF ANY REAL ESTATE LICENSEE OR OTHER
PARTY.
Contemporaneously, Nau reviewed the plat map and Mason County’s
online parcel map of the property. The plat map depicts a parcel labeled “CEMET-
ERY” between Lots 102 and 103. The face of the plat map also contains a
description reading, “EXCEPTING THEREFROM THE INDIAN CEMETERY
TRACT DESCRIBED AS FOLLOWS,” which specifically excludes the “CEMET-
ERY” from Lots 102 and 103 by a metes and bounds description. According to
Nau, “[t]he location of the cemetery on the plat map appeared consistent with what
Ms. Lewallen told [him] about its location.”
On November 2, 2015, Vogel’s agent provided Lewallen a revised Form 17
signed by Vogel in August 2015. The revised Form 17 also disclosed the
cemetery’s presence, stating:
Potlatch Cemetery. To the best of my knowledge, there is a an [sic]
area approx. 70’x70’ partially on my lot 103 and on my neighbor Lois
Culik’s lot 102 that was designated “Potlatch Cemetery” on the
original plat. The plot contains 5 gravestones from the Walker family,
missionaries deceased late 1800’s to early 1900’s. The area is
excluded from my tax bill. Lois Culik remembers the tribe moving the
Indian remains to a different site around 1950. The tribe surveyed
the plot in 2000 but they do not have access, visiting twice in the last
20 yrs, [sic] along with a south sound college studying early settler
gravesites. Neither tribe nor county maintain the grounds. I weed it,
infrequently.
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Later that same day, Lewallen sent the revised Form 17 to Nau in an email
that read: “Here you go. Please sign p 5 in the same area as you did yesterday.
You are signing that you have received the document NOT that you approve the
content. send [sic] page 5 back to me.” Nau signed the revised Form 17 under
the “Buyer’s Acknowledgement” provision, which contained language identical to
the same provision in the original Form 17.
Lewallen referred him to “a county employee named Grace Miller” to
investigate the cemetery. On November 7, 2015, Nau wrote a note on the
Feasibility Contingency Addendum saying “I’d be surprised if onsite meeting with
Mason Co [sic] can be scheduled within 15 days, especially with holidays
approaching. Interested in building restrictions and impact of graves/cemetery
11/07/15.”
On December 2, 2015, Nau submitted a Mason County Planning
Department Pre-Inspection Application and paid a $255.00 fee for the purpose of
determining any “Limitation imposed by graves on site – Any other building
restrictions.” Nine days later, Nau waived the feasibility contingency and informed
Vogel that he was satisfied with his investigation of the property.
On January 12, 2016, Mason County employee Miller inspected the
property. About two weeks later, Miller left a voice message informing Nau that he
should contact Washington’s Department of Archaeology and Historic
Preservation (DAHP) “regarding his question of developing his parcel with graves
on it.” She explained he had to contact DAHP “because human graves and
remains are protected under state laws.” Miller also gave Nau the name and phone
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number of the DAHP employee to call. But Nau did not contact the DAHP until 15
months later.
On February 13, 2016, Nau received a commitment for title insurance for
the property, which Vogel purchased as part of the REPSA. That commitment did
not insure against and excluded losses arising from “Indian tribal codes or
regulations, Indian treaty or aboriginal rights, including easements or equitable
servitudes” and “[p]ossible rights of sepulture, as disclosed by the face of the plat
and tax rolls.” Five days later, Nau and Lewallen again met Vogel at the property,
where Lewallen witnessed Vogel tell Nau that she was “leaving property files
behind” at the residence. 2 Nau denies that Vogel mentioned these files and claims
that he first discovered them over a year after purchasing the property.
During this transaction, Nau requested up to four extensions of the deadline
to close the sale and Vogel granted them all. The sale closed and Nau took
possession of the property on February 19, 2016.
Sometime thereafter, Nau commissioned a land survey of the property. In
December 2016, Nau’s surveyor generated a survey showing a “corner of
cemetary [sic] falls in garage.”
Nau contacted the DAHP in May 2017 inquiring about the “Potlatch
Cemetery and Indian Graveyard” on his property. On May 18, 2017, the DAHP
responded and, in pertinent part, informed Nau that:
This cemetery and graveyard are adjacent to your parcel of land and
the boundaries of the cemetery parcel appear to extend some
distance southwest towards your own parcel. Unfortunately historic
2 Vogel’s files were several inches thick and included, among other items, plat documents,
blueprints, maps, an appraisal, and correspondence concerning the Skokomish Indian Tribe’s
potential interest in the cemetery and its location.
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burial grounds and particularly Native American graveyards are ill-
defined geographically and there may be burials and/or archaeology
outside of the cemetery parcel but within your own land.
In October 2017, Nau sued Vogel and West Realty claiming that he did not
receive Vogel’s Form 17 disclosures and had not received accurate information
about the cemetery. He alleged four claims against Vogel: (1) breach of statutory
warranties, (2) breach of duty of good faith and fair dealing, (3) negligent
misrepresentation, and (4) fraudulent concealment. His sole claim against West
Realty alleged that it “failed to meet the standard of care owed to [him] by
negligently misrepresenting the location and extent of the Potlatch Cemetery and
failing to ensure that [he] received a set of Form 17 disclosures.”3 Vogel and West
Realty denied Nau’s allegations.
In February 2018, Vogel moved to dismiss Nau’s claims for breach of
warranties, negligent misrepresentation, and fraudulent concealment. In his
opposition, Nau argued in part that he “never received any information from Vogel
about the cemetery,” Vogel “did not provide any information about [the cemetery
to him] verbally, in writing, through her real estate agent, or in any other way,” and
he “never received the Form 17 disclosures that Vogel claims she gave to a real
estate agent to give to me.”
The trial court granted Vogel’s motion in part, dismissing the breach of
warranties and negligent misrepresentation actions. It denied the motion as to the
fraudulent concealment claim.
3 Nau did not assert any claims against Lewallen in his complaint.
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In January 2019, Vogel moved to dismiss Nau’s claim for breach of duty of
good faith and fair dealing. Nau opposed the motion, but also told the trial court
that “[i]n a previous declaration submitted to this Court, I stated that I never
received a set of Form 17 disclosures from the seller” and “[a]fter filing that
declaration, I found evidence in my personal email files that I actually did receive
a set of Form 17 disclosures from Nancy Vogel. Ms. Lewallen emailed them to me
prior to closing.” The trial court granted Vogel’s motion.
The following month West Realty moved for summary judgment dismissal
of Nau’s claim against it. The trial court granted the motion.
In November 2019, Vogel moved for summary judgment on Nau’s sole
remaining claim of fraudulent concealment. With new counsel at this point, Nau
conceded that his complaint “does say fraudulent concealment,” but argued that
the facts as pleaded “state a claim for fraud, not fraudulent concealment.” Nau
reiterated: “This is a claim for fraud. This isn’t a claim for fraudulent concealment.
There’s no allegation that there was any act of concealment.” He also conceded
that Lewallen had referred him to Grace Miller to inquire about the cemetery. The
trial court granted the motion and dismissed Nau’s complaint.
Vogel later sought attorney fees under the REPSA, CR 11, and RCW
4.84.185. Concluding Nau’s claims were frivolous in violation of CR 11, the trial
court awarded attorney fees in the amount of $43,029.73 as a sanction. Nau
appeals.
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ANALYSIS
Nau challenges the summary judgment dismissal of his negligence-based
claims against Vogel and West Realty and the award of CR 11 sanctions. 4
A. Standard of Review
We review summary judgment orders de novo, engaging in the same inquiry
as the trial court. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301(1998). We view the facts and all reasonable inferences in the light most favorable
to the nonmoving party. Id. Summary judgment is proper if there are no genuine
issues of material fact. Id.; CR 56(c). “A material fact is one that affects the
outcome of the litigation.” Owen v. Burlington N. & Santa Fe R.R., 153 Wn.2d 780,
789, 108 P.3d 1220 (2005).
A defendant moving for summary judgment “has the initial burden to show
the absence of an issue of material fact, or that the plaintiff lacks competent
evidence to support an essential element of [his or her] case.” Seybold v. Neu,
105 Wn. App. 666, 676, 19 P.3d 1068 (2001). If the defendant meets this initial
showing, then the inquiry shifts to the plaintiff to set forth specific evidence to
establish the elements of his or her claims. Young v. Key Pharm., Inc., 112 Wn.2d
216, 225, 770 P.2d 182 (1989). The responding plaintiff may not rely on
speculation, conclusory statements, mere allegations, or argumentative
assertions. CR 56(e); Sanders v. Woods, 121 Wn. App. 593, 600, 89 P.3d 312(2004). If the plaintiff fails to establish the existence of an essential element that
4 Nau does not appeal the trial court’s dismissal of his claims of breach of warranties, breach of
duty of good faith and fair dealing, and fraudulent concealment against Vogel. Thus, we conclude
that Nau has abandoned these issues on appeal.
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No. 82544-5-I/10
he or she bears the burden of proving at trial, then summary judgment is warranted.
Young, 112 Wn.2d at 225.
“In ruling on a motion for summary judgment, a court must apply the
standard of proof which will apply at trial.” Gossett v. Farmers Ins. Co., 133 Wn.2d
954, 973, 948 P.2d 1264 (1997) (citing Sedwick v. Gwinn, 73 Wn. App. 879, 885,
873 P.2d 528 (1994)). Accordingly, “[w]hen weighing summary judgment in a civil
case in which the standard of proof is clear, cogent, and convincing evidence,” we
must determine “whether a rational trier of fact could find from the evidence in the
record that the nonmoving party satisfied this evidentiary burden.”5 Tiger Oil Corp.
v. Yakima County, 158 Wn. App. 553, 562, 242 P.3d 936 (2010) (citing Woody v.
Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008)). Summary judgment is
appropriate where “the evidence is less than clear and convincing.” Gossett, 133
Wn.2d at 973.
We may “sustain the trial court’s judgment upon any theory established by
the pleadings and supported by the proof, even if the trial court did not consider it.”
LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989) (citing Wendle v.
Farrow, 102 Wn.2d 380, 382, 686 P.2d 480 (1984)).
B. Nau’s Claim of Negligent Misrepresentation Against Vogel
Nau argues the trial court erred when it summarily dismissed his negligent
misrepresentation claim against Vogel. We disagree.
5 “Clear, cogent, and convincing evidence is a quantum of proof that is less than ‘beyond a
reasonable doubt,’ but more than a mere ‘preponderance.’” Tiger Oil, 158 Wn. App. at 562 (quoting
Davis v. Dep’t of Labor & Indus., 94 Wn.2d 119, 126, 615 P.2d 1279 (1980)). “It is the quantum of
evidence sufficient to convince the fact finder that the fact in issue is ‘highly probable.’” Id. (quoting
In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)).
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To establish negligent misrepresentation, Nau must prove (1) Vogel
supplied information for his guidance in their business transaction that was false,
(2) Vogel knew or should have known that the information was supplied to guide
him in their business transaction, (3) Vogel was negligent in obtaining or
communicating the false information, (4) he relied on the false information, (5) his
reliance was reasonable, and (6) the false information proximately caused his
damages. Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007). He must
prove every element by clear, cogent, and convincing evidence. Id.On summary judgment, Vogel argued she disclosed what she knew about
the cemetery, that Nau had actual knowledge of the cemetery and a duty to
investigate, and that any reliance on Vogel’s statements was not justifiable in light
of his waiver of the feasibility contingency before closing. In dismissing the claim,
the trial court concluded that there was no evidence “Vogel provided false
information.”
Generally, purchasers of property have a right to rely on a seller’s written
representations. Jackowski v. Borchelt 174 Wn.2d 720, 738, 278 P.3d 1100 (2012)
(purchaser had a right to rely on representations in a Form 17 that the property did
not contain fill material). But “[o]nce a buyer discovers 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.” Douglas v. Visser, 173 Wn. App. 823, 832, 295 P.3d 800(2013); Miebach v. Colasurdo, 102 Wn.2d 170, 176, 685 P.2d 1074 (1984)
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No. 82544-5-I/12
(“[K]nowledge of facts sufficient to excite inquiry is constructive notice of all that
the inquiry would have disclosed.”).
On appeal, Nau admits that he “does not recall receiving a direct and false
representation of fact from Ms. Vogel” and “has no specific recollection of the seller
Vogel giving him incorrect information about the location of the cemetery on the
property,” but Vogel did testify that she walked the property with Nau and “showed
him where [she] thought the cemetery boundary was.” Nevertheless, even if Vogel
conveyed incorrect information as to the boundaries of the cemetery, once she put
him on notice of this cemetery’s existence and its possible boundaries, he had a
duty to investigate whether the cemetery extended onto Vogel’s land and whether
its presence would affect the landowner’s rights.
It is undisputed Vogel disclosed the existence and general location of the
cemetery. And the cemetery’s tombstones were visible; they were not hidden.
Nau signed a feasibility contingency in which he agreed to investigate the cemetery
and took steps to do so. He reviewed maps and asked the Mason County Planning
Department to investigate the cemetery before closing. But he then waived the
contingency and closed the transaction, despite receiving advice from a Mason
County employee that he should contact the DAHP to get information about
developing a parcel with graves on it. Had Nau contacted the DAHP before closing
he would have learned all the information that he subsequently discovered in May
2017.
Given Nau’s actual knowledge of the cemetery and his failure to investigate
the impact its presence would have on his property rights, we conclude no jury
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could find that he justifiably relied on any hypothetical false information provided
by Vogel. The trial court did not err in dismissing Nau’s negligent
misrepresentation claim against Vogel.
C. Nau’s Fraud Claim
Nau argues the trial court erred in dismissing his fraud claim against Vogel,
and in mistaking the claim to be one of fraudulent concealment, “based on the
inartful labeling of those claims in headings” in his complaint. There was no error.
“While inexpert pleadings may survive a summary judgment motion,
insufficient pleadings cannot.” Pac. Nw. Shooting Park Ass’n v. City of Sequim,
158 Wn.2d 342, 352, 144 P.3d 276 (2006) (citing Lewis v. Bell, 45 Wn. App. 192,
197, 724 P.2d 425 (1986)). Washington is a notice pleading state and simply
requires that a complaint state “(1) a short and plain statement of the claim showing
that the pleader is entitled to relief and (2) a demand for judgment for the relief to
which the pleader deems the pleader is entitled.” Id.; CR 8(a). “Complaints that
fail to give the opposing party fair notice of the claim asserted are insufficient.”
Pac. Nw. Shooting Park, 158 Wn.2d at 352 (citing Dewey v. Tacoma Sch. Dist. No.
10, 95 Wn. App. 18, 26, 974 P.2d 847 (1999) (stating that a party who fails to plead
a cause of action ‘cannot finesse the issue by later inserting the theory into trial
briefs and contending it was in the case all along.’)).
On a claim of fraudulent concealment, a seller has a duty to speak where
“(1) the residential dwelling has a concealed defect; (2) the vendor has knowledge
of the defect; (3) the defect presents a danger to the property, health, or life of the
purchaser; (4) the defect is unknown to the purchaser; and (5) the defect would
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not be disclosed by a careful, reasonable inspection by the purchaser.” Alejandre
v. Bull, 159 Wn.2d 674, 689, 153 P.3d 864 (2007) (citing Atherton Condo.
Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 524, 799
P.2d 250 (1990)). Here, the complaint alleged that “Vogel concealed from Nau
material facts regarding the Property’s condition with the intent to fraudulently
induce [him] to purchase the Property,” “Vogel had an obligation to disclose all
material facts regarding the Property’s condition to Nau,” and “Vogel’s fraudulent
concealment” caused Nau’s damages. He clearly alleged a claim of fraudulent
concealment against Vogel.
The elements of fraud are quite different and require a party to prove
(1) representation of an existing fact; (2) materiality; (3) falsity; (4)
the speaker’s knowledge of its falsity; (5) intent of the speaker that it
should be acted upon by the plaintiff; (6) plaintiff’s ignorance of its
falsity; (7) plaintiff’s reliance on the truth of the representation; (8)
plaintiff’s right to rely upon it; and (9) damages suffered by the
plaintiff.
Stiley v. Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996). 6 While Nau asserted a
negligent misrepresentation claim against Vogel, he did not allege fraud.
Because Nau did not allege Vogel committed fraud in his complaint, we do
not address the merits of this claim.
D. Nau’s Negligent Misrepresentation Claim Against West Realty
Nau next contends the trial court erred in dismissing his negligent
misrepresentation claim against West Realty. Nau claims that he has a specific
recollection of Lewallen giving him incorrect information about the location of the
6 Each element of fraud must be established by clear, cogent, and convincing evidence. Stiley,
130 Wn.2d at 505.
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cemetery and that his “recollection is consistent with the documentary record.” The
record does not support this claim.
Below, West Realty moved for summary dismissal arguing Nau had no
evidence that Lewallen made any negligent representations about the location and
extent of the cemetery and that, even assuming she had, Nau did not justifiably
rely on Lewallen’s misrepresentations. Nau opposed, declaring: “When I went to
view the Property as a potential buyer for the first time with Ms. Lewallen, she told
me there was a cemetery on the Property. I believe she pointed it out to me” and
“[t]o the best of my recollection, the area she pointed to was a small cluster of
headstones in an area located 40 to 50 feet away from the house and garage.”
(Emphasis added.) The trial court concluded that at most, Nau phrased his
allegation as Lewallen “might have shown” where the cemetery was on the
property which “sounds like speculation.”
On appeal, Nau does not cite any evidence in the record indicating that
Lewallen misrepresented the location of the cemetery. We agree that Nau’s
testimony was speculation, not evidence. It is well-settled that speculation and
conclusory statements are insufficient to defeat summary judgment. Sanders, 121
Wn. App. at 600.
Moreover, even if the evidence showed that Lewallen pointed to a spot and
told Nau the cemetery was located there, Nau’s claim fails because he could not
justifiably rely on Lewallen’s representations. This is so because Nau was on
notice of the cemetery’s existence and had numerous sources of information
triggering his duty to investigate the cemetery prior to closing, including Vogel’s
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original and revised Form 17, the plat map, the county’s online parcel viewer maps,
his contacts with the county’s planning department, the title insurance coverage
exemptions, and the county’s recommendation to contact the DAHP.
For these reasons, we agree with the trial court’s dismissal of Nau’s
negligent misrepresentation claim against West Realty. There was no error.
E. Nau’s Negligence Claim Against West Realty
Nau contends West Realty, through Lewallen’s actions, was negligent by
breaching several duties owed to him under chapter 18.86 RCW. But he submitted
no evidence to the trial court to establish any breaches of any statutory provision.
He first argues that Lewallen failed to inform him of the importance of the
Form 17 and she “vouched” for Vogel’s representations about where the cemetery
was located in violation of RCW 18.86.030(1)(a), which requires a real estate agent
to “exercise reasonable skill and care.” Real estate brokers owe the duties listed
in RCW 18.86.030 to “all parties to whom the broker renders real estate brokerage
services.” “In 2013, the legislature amended RCW 18.86.110 in light of the
Supreme Court’s holding in Jackowski v. Borchelt that real estate brokers owed
clients common law fiduciary duties in addition to the statutory duties.” Beauregard
v. Riley, 9 Wn. App. 2d 248, 255, 443 P.3d 827 (2019) (citing Jackowski, 174
Wn.2d at 732-33). “The amendment makes clear that ‘[t]he duties under this
chapter are statutory duties and not fiduciary duties. This chapter supersedes the
fiduciary duties of an agent to a principal under the common law.’” Id. (quoting
RCW 18.86.110).
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Nau presented no evidence as to how West Realty failed to exercise
reasonable skill and care in this transaction. Rather, Nau acknowledges on appeal
that “it is true that Ms. Vogel disclosed the presence of the cemetery onsite and
Ms. Lewallen discussed it with” him. And the evidence indicates that Nau and
Lewallen discussed his interest “in learning more about whether the cemetery
would pose any building restrictions associated with the property,” which resulted
in him signing a feasibility contingency to investigate the cemetery.
As for Nau’s allegation that Lewallen vouched for Vogel’s representations,
this contention ignores the fact that he signed several documents affirmatively
acknowledging that he could not rely on any statement from Lewallen because she
was relying solely on information provided by the seller. 7 Thus, Nau failed to
establish a breach of West Realty’s statutory duty under RCW 18.86.030(1)(a).
Next, Nau asserts Lewallen failed to advise him “to seek expert advice on
matters relating to the transaction that [were] beyond [her] expertise” contrary to
the duties set forth in RCW 18.86.040(1)(c). Specifically, he says Lewallen did not
at any point advise him to seek expert advice concerning any aspect of the
cemetery, she did not suggest that he confirm the cemetery’s location, and she did
not suggest that he contact the county or any agency officials about it. But Nau
admitted in one of his declarations that Lewallen “referred” him to Mason County
employee Miller to investigate any building restrictions posed by the cemetery. It
7In the Form 17, Nau acknowledged: “THE FOLLOWING ARE DISCLOSURES MADE BY SELLER
AND ARE NOT THE REPRESENTATIONS OF ANY REAL ESTATE LICENSEE OR OTHER
PARTY . . . AND ACKNOWLEGES THAT THE DISCLOSURES MADE HEREIN ARE THOSE OF
THE SELLER ONLY, AND NOT OF ANY REAL ESTATE LICENSEE OR OTHER PARTY.” Nau
signed the REPSA, which contained a clause saying: “Buyer and Seller agree . . . all
representations and information regarding the Property and the transaction are solely from the
Seller or Buyer, and not from any Broker.”
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is undisputed that Lewallen arranged for Miller to inspect the property and that
Miller, in turn, referred Nau to an expert (the DAHP contact) to ask about the very
issues he now criticizes Lewallen about. We see no merit to Nau’s assertion that
West Realty breached its duty to refer him to an expert because the record clearly
shows otherwise.
Nau also contends that West Realty breached its duty under RCW
18.86.030(1)(d), which requires real estate agents to “disclose all existing material
facts known by the broker and not apparent or readily ascertainable to a party.”
He suggests that a competent real estate agent should have known about the
Skokomish Indian Tribe’s potential jurisdiction over the cemetery and disclosed
that fact to him. However, Nau appears to misunderstand the scope of West
Realty’s duty here.
This subsection imposes a duty to disclose only what the broker knows and
cannot “be construed to imply any duty to investigate matters that the broker has
not agreed to investigate.” RCW 18.86.030(1)(d). Additionally, “[u]nless otherwise
agreed, a broker owes no duty to conduct an independent inspection of the
property . . . and owes no duty to independently verify the accuracy or
completeness of any statement made by either party.” RCW 18.86.030(2). Nau
has not identified any evidence showing that Lewallen knew any more about the
Skokomish Indian Tribe’s interests in the cemetery than he did and failed to
disclose that information to him. Nor is there any evidence that Lewallen agreed
to investigate this issue on behalf of Nau. And Lewallen was not obligated to
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independently conduct such an investigation for him. Id. We see no statutory
breach here.
Finally, Nau claims that there is “a strong inference” that West Realty sought
to earn a commission and “failed to protect him from a disastrous transaction” in
violation of its duty to “deal honestly and in good faith” under RCW 18.86.030(1)(b).
But Nau did not raise this argument on summary judgment, so we decline to
address this argument made for the first time on appeal. 8 RAP 9.12; Sourakli v.
Kyriakos, Inc., 144 Wn. App. 501, 509, 182 P.3d 985 (2008) (“An argument neither
pleaded nor argued to the trial court cannot be raised for the first time on appeal.”).
Because there is no evidence of statutory breach, we affirm the trial court’s
dismissal of these claims against West Realty.
F. CR 11 Sanctions
Lastly, Nau argues the trial court erred in imposing CR 11 sanctions. 9 He
contends that his claims against Vogel were inartfully pleaded, not frivolous. We
disagree.
We review a decision on CR 11 sanctions for abuse of discretion, asking
whether the trial court’s decision was manifestly unreasonable or based on
untenable grounds. MacDonald v. Korum Ford, 80 Wn. App. 877, 884, 912 P.2d
1052 (1996). A trial court may award fees under CR 11 against an attorney or a
8In opposition to summary judgment, Nau argued that “Lewallen breached her statutory duty to
deal fairly and honestly in representing the cemetery’s location.” He did not claim that West Realty
put its interests in earning a commission above its duty to fairly represent him in this sale.
9 Nau was represented by two different attorneys during this litigation. The record is unclear, and
none of the parties address, whether the order imposed sanctions against Nau, his original counsel,
or his substitute counsel. Generally, an attorney sanctioned under CR 11 is an aggrieved party
and may seek review of a sanctions order under RAP 3.1. Splash Design, Inc. v. Lee, 104 Wn.
App. 38, 44, 14 P.3d 879 (2000).
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party for filing a pleading that is not grounded in fact or warranted by law or is filed
in bad faith for an improper purpose. Loc Thien Truong v. Allstate Prop. & Cas.
Ins. Co., 151 Wn. App. 195, 207, 211 P.3d 430 (2009). The court cannot impose
CR 11 sanctions unless it finds that the attorney who signed and filed the complaint
failed to conduct a reasonable inquiry into the factual and legal basis of the claim.
Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992). The court
applies an objective standard to determine whether a reasonable attorney in like
circumstances could believe their actions to be factually and legally justified. Id.The trial court concluded that Nau’s claims against Vogel for breach of
statutory warranties, negligent misrepresentation, and breach of duty of good faith
and fair dealing were meritless. We find no abuse of discretion here.
Nau conceded to the trial court that his breach of duty of good faith and fair
dealing claim was meritless and “could be sanctionable.” As to his negligent
misrepresentation claim, Nau initially claimed that Vogel never provided him any
information in a Form 17 about the cemetery verbally or in writing, but in later
declarations he stated exactly the opposite. And the undisputed evidence
establishes that Vogel did so.
Lastly, his claims asserting breach of the warranties of seisin, against
encumbrances, and quiet enjoyment were frivolous. The warranty of siesin
guarantees that, at the time of conveyance, the seller has possession, right of
possession, and complete legal title to the property. Double L. Props., Inc. v.
Crandall, 51 Wn. App. 149, 152-53, 751 P.2d 1208 (1988) (quoting RCW
64.04.030). Vogel had possession and legal title to the property she sold to Nau
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and there are no allegations that a third party had actual title to the property. So,
there was no merit to Nau’s alleging a breach of this covenant.
A warranty against encumbrances includes liens, easements, servitudes,
mortgages, leaseholds, restrictive covenants, judgments, contracts of sale, and
taxes assessed. See Ensberg v. Nelson, 178 Wn. App. 879, 887-88, 320 P.3d 97(2013); Stone v. Sexsmith, 28 Wn.2d 947, 951, 184 P.2d 567 (1947) (citing Berger
v. Weinstein, 63 Pa. Super. Ct. 153 (1916)). Nau failed to claim and prove any
undisclosed encumbrances exist on the property he purchased.
Finally, the warranty of quiet enjoyment is a covenant “generally breached
after conveyance, when a third party asserts a claim to the property.” Rowe v.
Klein, 2 Wn. App. 2d 326, 329, 409 P.3d 1152 (2018). Nau presented no evidence
to the trial court showing that a third party was actively challenging his possession
of the property.
In view of the record, we understand why the trial court deemed these
claims against Vogel to be meritless. We affirm the court’s CR 11 sanctions. 10
G. Attorney Fees
Vogel seeks an award of attorney fees on appeal under paragraph “q” of
the REPSA and RAP 18.9(a). Paragraph “q” of the REPSA provides that “if Buyer
or Seller institutes suit against the other concerning this Agreement the prevailing
party is entitled to reasonable attorneys’ fees and expenses.” Because Nau
instituted suit against Vogel and his claims “concern” the REPSA, Vogel is entitled
to an award of attorney fees under this contract provision. See Brooks v. Nord, 16
10 Nau does not challenge the amount of the trial court’s fee award.
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Wn. App. 2d 441, 446-450, 480 P.3d 1167 (2021) (paragraph “q” of REPSA
authorizes award of attorney fees for misrepresentation claims based on Form
17). 11
Therefore, we award Vogel reasonable attorney fees on appeal subject to
her compliance with RAP 18.1.
We affirm.
WE CONCUR:
11Because Vogel is entitled to attorney fees under the REPSA, we need not address Vogel’s
contention that this appeal was frivolous.
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