Howard Seelig & Beatrice Seelig, Apps. v. 308 Fourth Avenue South Joint Venture, Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HOWARD and BEATRICE SEELIG, )
a marital community, ) No. 78716-1-I
Appellants, ) DIVISION ONE
)
v. )
) UNPUBLISHED OPINION
308 FOURTH AVENUE SOUTH )
JOINT VENTURE, a New York )
general partnership, ORT )
DOWNTOWNER, LLC, a general )
partner, MARTIN A. SEELIG, a )
general partner, MICHELLE SEELIG )
TRUST, a general partner, RACHEL )
SEELIG TRUST, a general partner, )
JENNIFER H. SEELIG, a general )
partner, LAURA S. STRICKLAND, )
a general partner, MARK E. )
STRICKLAND, a general partner, )
GOLDSCHMIDT FAMILY TRUST, a )
general partner, LAWRENCE E. )
GOLDSCHMIDT, a general partner, )
ELLEN C. GOLDSCHMIDT, a general )
partner, JULIET S. AMES GRANTOR )
TRUST, a general partner, )
ALEXANDER K. AMES GRANTOR )
TRUST, a general partner, SAMANTHA)
WINSLOW GRANTOR TRUST, a )
general partner, JESSIE WINSLOW )
GRANTOR TRUST, a general partner, )
MARGARET S. LARKIN TRUST, a )
general partner, MATTHEWS. ) FILED: October 28, 2019
LARKIN GRANTOR TRUST, a )
general partner, MICHELLE C. )
KORNBLAU GRANTOR TRUST, a )
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general partner, JOEL B. )
KORNBLAU GRANTOR TRUST, a )
general partner, )
Respondents.
LEACH, J. — Howard Seelig appeals the trial court’s summary judgment
dismissal of his lawsuit against 308 Fourth Avenue South Joint Venture (“Joint
Venture”). First, he claims that he raised genuine issues of material fact about
whether he was an employee of Joint Venture and whether he rendered real
estate brokerage services to Joint Venture. Next, he claims that he was entitled
to a continuance to conduct discovery under CR 56(f) because he identified a
supposed agreement that, if found, would show Joint Venture promised in writing
to compensate him for managerial efforts.
The services that Seelig rendered for the Joint Venture are not exempt
from the licensing requirement. So no genuine issues of material fact exist
regarding Seelig’s claim for additional compensation for management services.
Seelig also fails to establish that the trial court abused its discretion by denying
his request for a continuance for discovery.
We affirm.
FACTS
Howard Seelig and several others formed Joint Venture in 1970 to
purchase, rehabilitate, and operate a large apartment project in Seattle, the
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Downtowner Apartments. The Joint Venture partnership agreement stated that
Seelig and his brother, Martin Seelig, would manage the Downtowner.
The Downtowner was a low-income apartment building operated under
Federal Housing Authority regulations. In his February 17, 2015, declaration,
Seelig describes the services for which he seeks additional compensation. He
agrees that he received compensation for management services during his
tenure with the property but contends that Joint Venture owes him more.
In 2004, Seelig conveyed his ownership interest in Joint Venture to others
but continued as its manager. He managed the Downtowner until September
2011. Joint Venture sold the Downtowner in 2012.
Seelig sued for breach of contract after the building was sold. His
complaint states only a claim for additional compensation for unpaid
management services for the Downtowner, but the record established an
unpleaded claim for a bonus due on the sale of the Downtowner. Joint Venture
asked the court to dismiss both claims on summary judgment. The trial court
granted this request. Seelig appealed this decision.1 This court affirmed the
1 Seelig claimed on his first appeal that the trial court erred in granting
summary judgment because (1) there were genuine issues of material fact
whether he was entitled to a bonus when Joint Venture sold the Downtowner, (2)
there were genuine issues of material fact whether Joint Venture terminated him
in bad faith, and, of relevance in this appeal, (3) the trial court erred in granting
summary judgment on his claim for additional compensation for management
services. Seelig v. 308 Fourth Ave. S. Joint Venture, No. 75777-6-I, slip op.
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dismissal of the bonus claim but reversed dismissal of the additional
management services compensation claim.2
After remand, Joint Venture renewed its request for summary judgment.
Seelig asked the trial court to continue Joint Venture’s request to allow him to
conduct additional discovery about a supposed signed agreement for additional
compensation that Seelig was unable to confirm exists. The trial court granted
summary judgment dismissing Seelig’s remaining claim, noting how Seelig
cannot “come within any of the exceptions to the statute on the licensing.” Seelig
appeals.
ANALYSIS
Motion for Summary Judgment
Employee Exemption
Seelig claims that the record shows genuine issues of material fact exist
about whether Seelig was an employee of Joint Venture and, thus, exempt from
any licensing requirement.
This court reviews an order granting summary judgment de novo.3
Summary judgment is appropriate when, viewing all facts and reasonable
(Wash. Ct. App. Dec. 18, 2017) (unpublished),
http://www.cou rts.wa.gov/opinions/pdf/757776. pdf.
2 The respondents incorrectly quoted RCW 18.85.331, the statute central
to its argument on the management services claim. This court vacated the
summary judgment on this claim and remanded for proceedings without ruling on
the merits of the claim. Seelig, No. 75777-6-I, slip op. at 8.
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inferences in the light most favorable to the nonmoving party, no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of
law.4 We consider the same evidence that the trial court considered.5
In his complaint, Seelig sought compensation for his services rendered as
manager of the Downtowner. RCW 18.85.331 prohibits a person from
performing real estate brokerage tasks without a license.6 It also prohibits a
person from bringing suit to collect compensation as a real estate broker without
a broker’s license.7 A person performs real estate brokerage services by
‘[n]egotiating or offering to negotiate, either directly or indirectly, the purchase,
sale, exchange, lease, or rental of real estate, or any real property interest
therein.”8
Seelig admitted in his declaration that he “negotiated a deal with
Goodman Real Estate to purchase the Downtowner for $16 million ... but [the
deal] fell through” and that he claimed additional compensation in part due to “his
efforts in facilitating a sale transaction of the Downtowner Apartments.” He also
stated that he “[set] up [the] purchase of the property.” Because Seelig
~ Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d 55, 63-64, 1 P.3d 1167(2000).
~ Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
~ Lybbert, 141 Wn.2d at 34.
6 RCW 18.85.331.
~ RCW 18.85.331.
8 RCW 18.85.011(17)(b).
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negotiated the purchase of real property, the services that he provided were real
estate brokerage services, which require a license.
So Seelig would need to be exempt from the broker’s license requirement
in order to be compensated in this case. He claims he is exempt under RCW
18.85.151(1), which exempts “[amy person who purchases or disposes of
property. . . and their employees” from needing a license.9 He states in his brief,
[l]f Seelig was an employee of the Joint Venture at the time the
Joint Venture promised to pay him management compensation and
a bonus when the Downtowner was sold, then he was exempt from
the licensing requirement. Whether Seelig was an employee of the
Joint Venture at the time the Joint Venture promised to pay him
management compensation and the bonus is a genuine issue of
material fact.
But Seelig’s status as an employee of Joint Venture when the supposed
agreement for management compensation was made is not relevant. The
statute exempts people who buy or sell real property and their employees; it does
not provide a continuing exemption for a person who may have been an
employee when a compensation agreement was made but stops being an
employee before any sale occurs, as Seelig suggests.
Seelig admits he was not an employee of Joint Venture when it sold the
Downtowner. Thus, even if he ever was an employee of Joint Venture, he
agrees that he was not an employee when Joint Venture “purchase[d] or
~ RCW 18.85.151(1). In this case, the licensing exemptions refer to a real
estate broker’s license.
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dispose[d] of [the] property.”1° Since Seelig’s employment status with Joint
Venture when it sold the building is the relevant question, no genuine issues of
material fact exist as to whether Seelig was an employee of Joint Venture at the
relevant time.
Brokerage Services
Seelig also argues that the record shows genuine issues of material fact
about whether Seelig rendered exempt real estate brokerage services to Joint
Venture. He claims his activities as property manager fell “squarely” within the
licensing exemption provided in RCW 18.85.151(13). Joint Venture claims that
his activities do not fit within this exemption because he admittedly engaged in
real estate brokerage services beyond those described in this exemption.
RCW 18.85.151(13) exempts from the licensing requirement individuals
who are “limited in property management” to any of the following activities:
(a) Delivering a lease application, a lease, or any
amendment thereof to any person;
(b) Receiving a lease application, lease, or amendment
thereof, a security deposit, rental payment, or any related payment
for delivery to and made payable to the real estate firm or owner;
(c) Showing a rental unit to any person, or executing leases
or rental agreements, and the employee or retainee is acting under
the direct instruction of the owner or designated or managing
broker;
10Respondents failed to raise this issue in their briefing and instead
argued that Seelig was never an employee.
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(d) Providing information about a rental unit, a lease, an
application for lease, or a security deposit and rental amounts to
any prospective tenant; or
(e) Assisting in the performance of property management
functions by carrying out administrative, clerical, financial, or
maintenance tasks.
Seelig admitted that the various tasks for which he seeks compensation
included negotiating a deal for the Downtowner, facilitating a sale transaction for
the Downtowner, negotiating about and then leasing and renting the
Downtowner, advertising and consulting with potential buyers, marketing the
property, ensuring the property was in compliance with federal regulations,
resolving legal complaints for the property, and preparing tax returns. He also
admitted in his declaration that his “primary role was that of the Joint Venture’s
chief executive officer (CEO) and chief financial officer (CEO).”
So undisputed facts in the record show that Seelig’s activities were not
limited to those described in RCW 18.85.151(13). He does not fit within the
exemption. Also, these additional tasks that Seelig performed include real estate
brokerage services.11 No genuine issues of material fact exist as to whether
Seelig rendered real estate brokerage services beyond the property
management activities listed in RCW 18.85.151(13). The trial court did not err by
granting summary judgment to Joint Venture.
11 RCW 18.85.O11(17)(b).
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CR 56(f) Continuance
Seelig asserts that the trial court should have granted his request for a
continuance for discovery under CR 56(f).
A trial court may deny a CR 56(f) continuance request for a number of
reasons: “‘(1) the requesting party does not offer a good reason for the delay in
obtaining the desired evidence; (2) the requesting party does not state what
evidence would be established through the additional discovery; or (3) the
desired evidence will not raise a genuine issue of material fact.”12 We will affirm
a trial court’s decision to deny a CR 56(f) motion absent a showing of manifest
abuse of discretion.13
Here, Seelig claims he was entitled to conduct discovery to find a “written
agreement to pay compensation and/or additional compensation to him.” The
alleged written agreement purported to compensate Seelig for his “services
rendered as the manager of the [b]uilding.” Seelig’s “services rendered as the
manager” include real estate brokerage services, as described above. So any
search for an agreement for management services is fruitless. Even if Seelig
finds this supposed written agreement through discovery, that agreement would
provide for compensation for service that included brokerage services, Seelig
12 Baechler v. Beaunaux, 167 Wn. App. 128, 132, 272 P.3d 277 (2012)
(quoting Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989)).
13 Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins.
Co~ 176 Wn. App. 168, 183, 313 P.3d 408 (2013).
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does not have a broker’s license, a person cannot sue for compensation for
brokerage services without a license, and Seelig’s activities are not exempt from
the licensing requirement.
Seelig did not identify any evidence that he might obtain through discovery
that would raise a genuine issue of material fact. The trial court did not abuse its
discretion in denying Seelig’s CR 56(f) motion.
Seelig also states that he should be entitled to a continuance for discovery
because “{ijf the [a]greement does not exist, then Goldschmidt may have
perpetrated an elaborate fraud on Seelig by misrepresenting that the [a]greement
had been signed by the Joint Venture.” However, Seelig did not plead a claim for
fraud or misrepresentation in his original complaint. So the trial court did not
abuse its discretion in denying Seelig’s CR 56(f) motion.
Attorney Fees
Joint Venture requests an award of attorney fees and costs pursuant to
RAP 14.1 and RAP 18.9(a), claiming that Seelig’s appeal is frivolous. We
disagree.
RAP 18.9(a) permits the court to require a party to pay the fees and costs
of another party for defending a frivolous appeal.14 “An appeal is frivolous if it
raises no debatable issues on which reasonable minds might differ and it is so
14 Kinney v. Cook, 150 Wn. App. 187, 195, 208 P.3d 1(2009).
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totally devoid of merit that no reasonable possibility of reversal exists.”15 An
appellate court resolves any doubts about whether the appeal is frivolous in favor
of the appellant.16
Joint Venture argues that Seelig’s arguments are “belied by the rules of
procedure, the plain language of a state statute, and uniform case law.” It claims
that Seelig has presented no debatable issues or close questions.
While Seelig’s arguments do not persuade this court, an appeal is not
frivolous merely because it is unsuccessful.17 And this court reaches for the first
time the merits of an issue that Seelig raised in his first appeal.
For these reasons, we deny the request for fees and costs.
CONCLUSION
We affirm. Because Seelig admitted that he was not an employee of Joint
Venture when it sold the Downtowner, no genuine issue of material fact exists
about whether Seelig was an employee of Joint Venture at any relevant time.
Additionally, Seelig admitted to performing services that do not qualify him under
the licensing requirement exemption. No genuine issue of material fact exists
about whether Seelig rendered real estate brokerage services to Joint Venture.
15 Hernandez v. Stender, 182 Wn. App. 52, 61, 358 P.3d 1169 (2014)
(quoting Protect the Peninsula’s Future v. City of Port Angeles, 175 Wn. App.
201, 220, 304 P.3d 914 (2013)).
16 Protect the Peninsula’s Future, 175 Wn. App. at 220.
17 Protect the Peninsula’s Future, 175 Wn. App. at 220.
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Finally, because Seelig did not identify any evidence that would entitle him to an
exemption from the licensing requirement, the trial court did not abuse its
discretion in denying his CR 56(f) motion. We deny Joint Venture’s requests for
attorney fees and costs.
/
/
WE CONCUR:
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