Opinion
No. 35352-1-II.
November 6, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-06122-1, Linda CJ Lee, J., entered August 25, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton, C.J., and Penoyar, J.
Teresa McCormick appeals the trial court's grant of summary judgment dismissing her claims for negligent misrepresentation, constructive fraud, and fraudulent concealment. McCormick also disputes the trial court's award of attorney fees in favor of the Estvolds. The Estvolds cross-appeal, contending that the trial court abused its discretion by failing to award the full amount of requested attorney fees and costs. We affirm the summary judgment and the attorney fee award based on the contract. Further, we grant reasonable attorney fees to the Estvolds based on the contractual agreement regarding the prevailing party.
FACTS
In September 1991, the Estvolds purchased a house in Lakewood where they lived for 12 years before selling it to McCormick in 2003. Other than having the original builder resurface a chimney in 1992, the Estvolds' home did not require any major repairs before 2002. But in February 2002, Mr. Estvold discovered a six to eight inch long patch of light gray mold in his upstairs office following a heavy rain. He cleaned the area with bleach and a towel, but the spot returned a few weeks later.
In March 2002, the Estvolds hired Bennett Technical Services (BTS) to remove the mold. While in the attic, BTS agent Bobby Dean Couch discovered a leak near the master bedroom, a light surface mold in the attic, water-damaged top plate material around the chimney area, poorly installed metal flashing, and leaking roof shingles and sheathing. BTS removed the mold, replaced the flashing, inserted three roof vents, and installed two thermostat-controlled ventilation fans to increase airflow. The Estvolds paid BTS $1,568.16 for the repairs.
Although Mr. Estvold periodically climbed onto the roof to clean, he never entered the attic. The Estvolds contend that they did not experience any further problems with mold or leaks before selling the house to McCormick.
On January 20, 2003, the Estvolds signed a Form 17 Real Property Transfer Disclosure Statement (RPTDS) describing the condition of the property. In this statement, the Estvolds indicated that "yes" that the roof had leaked and been repaired, CP at 18; they checked the corresponding boxes indicating known defects in the chimneys (described in handwriting as "cosmetic") and the exterior walls (handwriting specifies that the house has L.P. Siding). CP at 19. In addition, the Estvolds answered "no," indicating that there were not any problems with settling, soil, standing water, or drainage on the property. CP at 20. They also answered "no" when asked whether there were any other material defects that would affect the property or its value to a prospective buyer. CP at 20.
RCW 64.06.020(1) requires the seller of residential property to provide a disclosure statement with a minimum amount of information, including known defects and repairs to the property.
The home had Louisiana Pacific (LP) Siding, which was subject to claims for manufacturer liability. These claims are not part of this appeal.
On the "Buyer's Acknowledgment" page, the Estvolds handwrote explanations to the above-mentioned defects.
4E(1) Some cosmetic bubbling of stucco on inside of north chimney. It has been checked for moisture by Bennett Laboratories and sealed.
4E(2) LP siding.
5E Light mold problem in attic — treated in March '02 by Bennett Laboratories. Roof and flashing repaired. Vents and [two] humidity sensitive fans installed. Top layer of insulation replaced. Copy of work [and] cost attached.
This is likely a typographical error, as Section 5E refers to appliances. The Estvolds were likely referring to 4E.
CP at 21. The Estvolds attached the BTS work invoice, along with BTS's description of work completed.
On May 11, 2003, McCormick signed the Real Estate Purchase and Sale Agreement (REPSA). But, before signing the RPTDS, McCormick hired Scott DeSchryver of Lighthouse Home Inspection, LLC, to inspect the home. McCormick provided DeSchryver with a copy of the BTS invoice to use during his inspection. DeSchryver's inspection revealed the following:
Grading/Drainage:
. . .
CONDITION: Grade at foundation appears serviceable[.] Recommend monitoring site drainage during after heavy rains. [CP at 235.]
Roof:
. . . .
CONDITION: Appears functional and within useful life. Moss was observed growing on the surface. Moss can damage the roof and will reduce its effective life. . . . [C]ellulose debris was also noted on the roof. Pine needles and twigs retain moisture on the roof covering and lead to deterioration of the shingles more quickly. [CP at 236.]
Chimney:
. . .
CONDITION: Appears functional. [CP at 236.]
Exposed Flashings:
. . .
CONDITION: Metal, [a]ppears serviceable. [CP at 236.]
Gutters Downspouts:
. . .
Condition: Metal, [a]ppears serviceable. [CP at 236.]
Attic and Insulation:
. . .
Condition: Accessible. Mechanical exhaust vents controlled by humidity sensors were found in the attic. These fans were put in place to reduce and prevent mold growth in the attic area. The fan above the master bedroom area is fully operational and responded to controls. The fan above the hallway attic access did not function properly. It appears that the fan blades are obstructed and adjustment is needed. The [sic] appeared dry with no evidence of leaks or moisture. (Handwritten addition indicates, "fixed within days by Jim Anderson"). [CP at 236.]
Ceilings:
. . .
Condition: Drywall, [g]eneral condition appears serviceable. Evidence of water staining was noted at the ceiling above the office/bedroom. Stains appear to be dry at the time of inspection, however[,] it is recommended that these stains be monitored for potential leakage. The disclosure statement makes reference to a previous leak in this area, secondary to the failure of flashing around the chimney. Corrective measures were taken, and no evidence of new leaks were noted. [CP at 243.]
DeSchryver also performed a pest inspection. Following the inspection, the parties agreed on an addendum requiring the Estvolds to address four issues before closing the sale:
(1) employing a licensed exterminator to rid the crawlspace of rodents;
(2) removing wood debris from the crawlspace;
(3) hiring a specialist to service the furnace; and
(4) fixing the malfunctioning fan in the attic.
The Estvolds used an unlicensed exterminator and agreed to pay $250 to McCormick if the rodents returned within the first year following the sale. It appears that the Estvolds satisfied the rest of the requirements.
The "Buyer's Acknowledgment" portion of the RPTDS, which McCormick signed on May 16, 2003, contained the following:
Buyer acknowledges the duty to pay diligent attention to any material defects which are known to Buyer or can be known to Buyer by utilizing diligent attention and observation.
. . . .
Disclosures contained in this form are provided by the seller on the basis of seller's actual knowledge of the property at the time of disclosure.
CP at 21. The parties closed the sale on June 24, 2003.
In November 2003, McCormick found mold growing from the walls and ceiling of the upstairs office and closet. She also noticed an inch of water pooling around the house following heavy rains. In addition, McCormick found a board containing dry rot in the attic. As a result, she asked DeSchryver to re-inspect the home. While in the attic, DeSchryver found rot fungus and moisture ant damage when he lay on his stomach and removed layers of insulation. DeSchryver acknowledged that he had not seen the damage in his previous inspection because Lighthouse Home Inspection's policy is to avoid disturbing insulation.
During 2004, McCormick hired several additional inspectors while preparing to fix her chimneys and roof. McCormick hired Gregory Heck, Dryvit inspector, who stated that any previous work done in the attic was probably below code. The same day, George Dusty Rhodes III, city building inspector, opined that the defects had probably existed for over a year.
McCormick filed her complaint against the Estvolds in Pierce County Superior Court, alleging intentional misrepresentation, negligent misrepresentation, constructive fraud, fraudulent concealment, and breach of contract. The Estvolds counterclaimed for attorney fees and costs. The Estvolds moved for summary judgment, which the trial court granted for all claims. The trial court denied McCormick's motion for reconsideration and granted $29,000 in attorney fees plus costs in favor of the Estvolds.
McCormick appeals the summary judgment dismissal of her negligent misrepresentation, constructive fraud, and fraudulent concealment claims, in addition to the trial court's award of fees and costs against her. The Estvolds cross-appeal, seeking additional fees and costs.
McCormick does not appeal summary judgment dismissal of her claims for intentional misrepresentation and breach of contract.
ANALYSIS
We review an order on summary judgment de novo, engaging in the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). 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). We view all facts in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). We grant summary judgment only if reasonable persons could reach but one conclusion from all the evidence. Vallandigham, 154 Wn.2d at 26.The moving party bears the burden of demonstrating that there is no genuine issue of material fact. Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). A material fact is one on which the outcome of the litigation depends in whole or in part. Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on having its affidavits considered at face value. Seattle Police Officers Guild v. City of Seattle, 151 Wn.2d 823, 848, 92 P.3d 243 (2004) (citing Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). "If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute." Atherton, 115 Wn.2d at 516. If the nonmoving party fails to do so, then summary judgment is proper. Vallandigham, 154 Wn.2d at 26 (citing Atherton, 115 Wn.2d at 516).
I. Negligent Misrepresentation
McCormick alleges that the trial court erred by dismissing her negligent misrepresentation claim, asserting that several genuine issues of material fact existed. Washington has adopted the definition of negligent misrepresentation set forth in the Restatement (Second) of Torts:
One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.ESCA Corp. v. KPMG Peat Marwick, 135 Wn.2d 820, 826, 959 P.2d 651 (1998) (quoting Restatement (Second) of Torts § 552(1) (1977)). Thus, the necessary elements are: (1) supplying false information; (2) which the defendant knew or should have known would guide the plaintiff in the transaction; (3) the defendant was negligent in obtaining or communicating the false information; (4) the plaintiff relied on the false information the defendant supplied; (5) the plaintiff's justifiably relied on the false information; and (6) the false information proximately caused the plaintiff's damages. Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002). McCormick contends that she provided sufficient evidence to establish a question of material fact as to whether: (1) the Estvolds provided false information by representing that the BTS repairs were adequate; (2) the Estvolds were negligent in obtaining or communicating information; and (3) she justifiably relied on the Estvolds' misrepresentations to her detriment. The Estvolds counter that the economic loss rule bars McCormick's claim.
She first claims that BTS either never made the repairs or, if it did, the repairs were so inadequate that they were the direct cause of her future problems. As such, she claims that any statement the Estvolds made involving BTS repairs would be a false statement. McCormick bases her assertion on Heck's declaration that the 2002 work was likely below code standards and that "such work was so poorly done, if done at all[,] it caused even further damage to the chimneys and likely increased the amount of water flowing into the chimney space." CP at 391. Heck later stated his belief that these conditions were present in 2002, when the Estvolds sold the property to McCormick. But, the record indicates that the Estvolds disclosed only that BTS completed the repairs. The Estvolds did not state that the repairs were adequate or that they satisfied code requirements. Further, Heck's statement, "if done at all," is speculative at best, and McCormick cannot rely on mere speculation. Seattle Police Officers Guild, 151 Wn.2d at 848.
Nor does the record show that the Estvolds made any false statements regarding the BTS repairs. The Estvolds disclosed that after they noticed mold, they hired BTS to complete repairs, BTS completed the repairs, the Estvolds paid for the repairs, and the Estvolds did not experience any further problems with leaks or mold before selling the home. Further, the Estvolds disclosed the BTS repairs to McCormick before the sale. McCormick's own inspector, DeSchryver had a copy of the BTS invoice when he performed his inspection, ultimately noting that all affected areas appeared dry and that there were no new leaks. Accordingly, we hold that McCormick failed to present any genuine issues of material fact that the Estvolds made any false statements.
It is important to note that the mold and rot discovered in 2004 when DeSchryver reinspected the home were located in a crawlspace in the attic beneath layers of insulation. When Daniel Suomi, investigator for the Washington State Department of Agriculture, investigated McCormick's claim against DeSchryver, he noted that the damaged areas were only visible by stretching across the roofline and pulling back insulation, which is something most inspectors would not do. This is further evidence that any damage in existence at the time of the sale was latent, as it was not discovered by BTS or McCormick's own inspector.
McCormick next asserts that the Estvolds negligently communicated that the BTS repairs were adequate. Specifically, she contends that neither BTS nor Bobby Dean Couch was a licensed contractor in March 2002 and, as such, the Estvolds negligently hired an unlicensed and inexperienced contractor to perform the repairs on their home. Further, she asserts that the Estvolds did nothing to ensure that the repairs were adequate and, instead, merely "took Bennett at their word." Br. of Appellant at 20. Specifically, McCormick points to an internet search she conducted to identify the business licensing status of BTS and Couch, in which she found no evidence of the existence of BTS as a licensed entity. McCormick thus contends that the Estvolds were negligent to rely on an unlicensed contractor to complete the repairs and, accordingly were negligent in disclosing to her that BTS repaired the defects. She contends that RCW 64.06.050(1) does not apply to the Estvolds because BTS was not licensed. But, Couch provided evidence that BTS was the trade name for Bennett Laboratories, Inc., Bennett was licensed, and he served as "agent." CP 625, 629. As such, RCW 64.06.050 applies and protects any disclosures the Estvolds made based on the BTS work.
RCW 64.06.050(1) states:
Unless the seller of residential real property has actual knowledge of an error, inaccuracy, or omission in a real property transfer disclosure statement, the seller shall not be liable for such error, inaccuracy, or omission if the disclosure was based on information provided by . . . other persons providing information within the scope of their professional license or expertise, including, but not limited to, a report or opinion delivered by a land surveyor, title company, title insurance company, structural inspector, pest inspector, licensed engineer, or contractor.
McCormick also asserts that the Estvolds negligently communicated the information because they failed to request permits for the repair work, but she provides no authority indicating that permits were required.
Next, McCormick claims that she was justified in relying on the Estvolds' false statements. "[J]ustifiable reliance" is defined as reliance that was reasonable under the circumstances. ESCA Corp., 135 Wn.2d at 828. "Whether a party justifiably relied upon a misrepresentation is an issue of fact." ESCA Corp., 135 Wn.2d at 828. When a buyer sees evidence of a potential defect, the buyer is required to seek further information from the seller. Puget Sound Serv. Corp. v. Dalarna Mgmt. Corp., 51 Wn. App. 209, 215, 752 P.2d 1353, review denied, 111 Wn.2d 1007 (1988) (seller in Delarna not held liable when, after seeing evidence of a defect, the buyer did nothing to inquire about the extent of the problem). Here, it is clear that McCormick was aware of the RPTDS disclosures, water spotting in the office, previous leaking in the office, 2002 BTS repairs, the LP Siding claim, and bumpy sheetrock. In response, she hired DeSchryver to inspect the home and to help her generate a to-do list for the Estvolds before closing. This claim fails because the Estvolds did not supply false information.
The Estvolds contend that the recent decision in Alejandre v. Bull, 159 Wn.2d 674, 153 P.3d 864 (2007), precludes McCormick's negligent misrepresentation claim under the economic loss rule. We do not reach this argument because McCormick has failed to establish any genuine issue of material fact to save her negligent misrepresentation claim.
II. Constructive Fraud and Fraudulent Concealment
McCormick next contends that the trial court erred by dismissing her claims for constructive fraud and fraudulent concealment because several genuine issues of material fact remained in dispute. The necessary elements to prove constructive fraud include: (1) a representation of an existing fact; (2) its materiality; (3) its falsity; (4) the speaker's knowledge of its falsity; (5) his intent that it shall be acted on by the person to whom it is made; (6) ignorance of its falsity on the part of the person to whom the representation is addressed; (7) the latter's reliance on the truth of the representation; (8) his right to rely on it; and (9) his consequent damage. Williams v. Joslin, 65 Wn.2d 696, 697, 399 P.2d 308 (1965). The necessary elements to prove fraudulent concealment include: (1) a concealed defect in a residential building; (2) knowledge by the seller of the defect; (3) a defect that is dangerous to the property, health, or life of the purchaser; (4) the purchaser does not know of the defect; (5) a careful, reasonable inspection on the part of the purchaser would not disclose the defect; and (6) the defect substantially affects adversely the value of the property or operates to materially impair or defeat the purpose of the transaction. Atherton, 115 Wn.2d at 524. A buyer can use circumstantial evidence to prove a seller's actual knowledge. Sloan v. Thompson, 128 Wn. App. 776, 787, 115 P.3d 1009 (2005), review denied, 157 Wn.2d 1003 (2006). McCormick asserts that she has shown the following issues of material fact: (1) that the Estvolds had actual knowledge of drainage problems and multiple leaks and mold in the attic before the sale; (2) if not, BTS's knowledge can be imputed to the Estvolds under agency law; and (3) McCormick's investigation and reliance were justified.
McCormick asserts that the Estvolds had actual knowledge that water would pool against the foundation of the house following heavy rains although the Estvolds answered "no" to the RPTDS question, "[are] there any settling, soil, standing water, or drainage problems on the property." CP at 20. But the pooling claim is of no moment because the record contains no evidence of either damage, repairs, or costs incurred or associated with the pooling of water. Thus, this claim presents no material issue of fact.
McCormick next asserts that the Estvolds had actual knowledge of multiple leaks and spots of mold that they failed to disclose. Specifically, McCormick alleges that the Estvolds' handwritten notes on the RPTDS implied that there was only a "light mold problem in attic", CP at 21, and that there was only one leak, but Mr. Estvold stated during deposition that "[BTS] found another leak over near the master bath and bedroom somewhere, and they found mold in the attic, they said light mold. And they found a problem with the flashing up on the roof." CP at 341-42. McCormick claims that BTS's failure to document that they discovered another leak, along with the Estvolds' failure to disclose a second leak, constitutes fraudulent concealment. But the BTS invoice referenced the additional problems and remedies including mold inspection and removal, replacement of water-damaged roof sheathing, replacing flashing for the chimney and installation of fans to generate circulation. McCormick has not shown that the Estvolds had actual knowledge of any defects other than those disclosed on the RPTDS and BTS materials. We find that McCormick failed to show any issues of material fact regarding the mold and leaks.
Next, McCormick alleges that BTS knew the extent of the defects in the attic and that its knowledge may be imputed to the Estvolds. McCormick again supports her claim by arguing that RCW 64.06.050(1) does not apply to the Estvolds. But as we discussed above, Bennett Laboratories, Inc., was a licensed company at the time of the repairs, license number BENNEL1995NH, working under the trade name, Bennett Technical Services. As such, RCW 64.06.050(1) protects the Estvolds' disclosures and McCormick's claim fails.
III. Attorney Fees and Costs at Trial
Finally, McCormick asserts that the trial court erred by awarding $29,000 in attorney fees to the Estvolds. Specifically, she claims her suit is in tort and not in contract, thus eliminating the trial court's ability to award fees. The Estvolds counter that each of McCormick's claims arose out of the contract between the parties. In addition, the Estvolds cross-appeal, contesting the trial court's denial of attorney fees and costs for time spent pursuing insurance coverage and for duplicative work while preparing the summary judgment motion.
We review awards of attorney fees de novo. Ethridge v. Hwang, 105 Wn. App. 447, 460, 20 P.3d 958 (2001). We first determine whether the prevailing party is entitled to fees. Ethridge, 105 Wn. App. at 459. Next, we determine whether the amount awarded was reasonable using an abuse of discretion standard. Ethridge, 105 Wn. App. 460. A trial court abuses its discretion only when its ruling is manifestly unreasonable, or when it exercises its discretion on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We award attorney fees only under a contract, statute, or recognized ground of equity. Wilkerson v. United Inv., Inc., 62 Wn. App. 712, 716, 815 P.2d 293 (1991), review denied, 118 Wn.2d 1013 (1992).
The REPSA in this case provided, "[i]f Buyer or Seller institutes suit against the other concerning this Agreement, the prevailing party is entitled to reasonable attorney fees and expenses." CP at 15. McCormick contends on appeal that her tort claims are separate from the parties' contract, thus precluding the trial court's award of attorney fees. She correctly asserts that the trial court dismissed her breach of contract claim because the disclosure statement is statutorily separate from the sale agreement under RCW 64.06.020(3).
In her response to the Estvold's motion for summary judgment, McCormick contended "[a]ll claims asserted are related to the contract, including negligent misrepresentation and therefore the prevailing party will be awarded its fees at the resolution of this mater [sic]." CP at 387.
"The seller disclosure statement shall be for disclosure only, and shall not be considered part of any written agreement between the buyer and seller of residential property." RCW 64.06.020(3).
McCormick cites to Pearson v. Schubach, 52 Wn. App. 716, 723, 763 P.2d 834 (1988), review denied, 112 Wn.2d 1008 (1989). There, Division Three of this court remanded due to the trial court's failure to distinguish between the attorney fees incurred as a result of the contract action for specific performance and those fees resulting from the plaintiff's various tort claims. Pearson, 52 Wn. App. at 723. McCormick also relies on Lincor Contractors, Ltd. v. Hyskell, 39 Wn. App. 317, 324, 692 P.2d 903 (1984), review denied, 103 Wn.2d 1036 (1985), in which Division One denied attorney fees in a case involving a lender's withholding of loan proceeds when the loan application, proposed loan agreement, and permanent loan application all contained provisions for attorney fees, but the defendants did not bring the action to carry out the terms of these documents. Lincor Contractors, 39 Wn. App. at 324. McCormick next cites to this court's ruling in Norris v. Church Co., Inc., 115 Wn. App. 511, 513, 63 P.3d 153 (2002), where the plaintiff appealed summary judgment for a fraudulent concealment claim involving improper home construction. We reversed the summary judgment ruling and held that the suit was "for fraud, a tort, not on the contract. Thus, [plaintiff is] not entitled to attorney fees."
Norris, 115 Wn. App. at 517. Finally, McCormick cites to Burbo v. Harley C. Douglass, Inc., 125 Wn. App 684, 702, 106 P.3d 258, review denied, 155 Wn.2d 1026 (2005), in which Division Three reversed summary judgment when the buyer of a new home sued the seller holding that "[f]raudulent concealment sounds in tort, not contract. Therefore, the prevailing party would not be entitled to attorney fees." Burbo, 125 Wn. App. at 702.
The Estvolds counter that, if an action in tort is based on a contract containing an attorney fee provision, the prevailing party is entitled to attorney fees. An action is "on a contract" if (a) the action arose out of the contract; and (b) if the contract is central to the dispute. Edmonds v. John L. Scott Real Estate, Inc., 87 Wn. App. 834, 855, 942 P.2d 1072 (1997), review denied, 134 Wn.2d 1027 (1998). The Estvolds also rely on Elliott Bay Seafoods, Inc. v. Port of Seattle, 124 Wn. App. 5, 15, 98 P.3d 491 (2004), a suit for breach of contract, fraud, intentional and negligent misrepresentation, and promissory estoppel. Division One granted attorney fees because the retail and office leases contained attorney fees provisions. Elliott Bay Seafoods, 124 Wn. App. at 15. In addition, the Estvolds also cite to our Supreme Court's recent opinion in Alejandre, 159 Wn.2d at 691, as dispositive. In that case, the parties' purchase and sale agreement provided that attorney fees and costs would be awarded to the prevailing party in any dispute relating to the transaction. Alejandre, 159 Wn.2d at 691. Without discussion, the Alejandre court granted attorney fees and cost to the seller as the prevailing party. Alejandre, 159 Wn.2d at 691. It is likely that the Alejandre court was relying on its earlier discussion of the economic loss rule where it held that when damages are purely economic, the parties are limited to their contract remedies. Alejandre, 159 Wn.2d at 685.
The court referred to RCW 4.84.300, which provides attorney fees as costs in damage actions of $10,000 or less. Alejandre, 159 Wn.2d at 691.
It is unclear why the court chose that particular statute because the costs and damages in Alejandre totaled nearly $30,000. Alejandre, 159 Wn.2d at 680.
Alejandre's precedent does not bind this court because we are not making a determination that McCormick is seeking only economic damages. Because we affirm, we allow the attorney fees and costs to stand because McCormick's claims arose out of the contract and the contract was central to the dispute. Edmonds, 87 Wn. App. at 855. Although McCormick correctly asserts that the RPTDS is not a part of the contract, it was an integral part of her transaction with the Estvolds. Without the REPSA, there would be no need for the RPTDS and the sale never would have occurred.
Finally, the Estvolds cross-appeal requesting fees that the trial court denied. The Estvolds assert that the trial court exceeded the scope of its discretion by limiting the amount of attorney fees that they could recover. "In an action on contract which provides for attorney fees, reasonable fees shall be awarded to the prevailing party.
RCW 4.84.330. . . . The discretion of the trial court is, therefore, limited to deciding the amount of reasonable fees." Metro. Mortgage Sec. Co. v. Becker, 64 Wn. App. 626, 632, 825 P.2d 360 (1992). Here, the trial court limited the amount based on a finding that fees incurred while seeking insurance coverage and duplicative fees incurred while preparing for summary judgment were not recoverable. Because we review the trial court's decision under an abuse of discretion standard and the Estvolds have not shown that the trial court's decision was manifestly unreasonable, we affirm the award.
IV. Attorney Fees on Appeal
Estvolds seek attorney fees and costs incurred on appeal under RAP 18.1. Because they are entitled to fees and costs under the contract, we award reasonable fees and costs on their compliance with RAP 18.1.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. and PENOYAR, J., concur.