Opinion
No. 57756-5-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-16046-4, Douglass A. North, J., entered January 27, 2006.
Affirmed by unpublished opinion per Cox, J., concurred in by Becker and Ellington, JJ.
Nancy Williams appeals the dismissal of multiple claims she asserted against Windermere Real Estate, its real estate agent, and the seller of residential real estate to her. These defendants established in their summary judgment motion that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law on all claims. But they have not established a right to sanctions against the attorney for Williams. We affirm.
Williams entered into an agreement for a real estate investment with Mark Ashmore of Quan Holdings Investments. The investment required Williams to obtain 100 percent financing to purchase residential properties that would be remodeled and sold for substantial profits. Part of the financing was to be used to purchase the properties, and the remainder was to be used to service debt and remodel the properties for resale.
Williams purchased two properties for investment. Ashmore failed to properly use the loan proceeds to remodel the properties or service debt. Consequently, Williams did not achieve her investment expectations.
Williams sued Windermere Real Estate, Art Whittlesey, and Julie Scozzafave (collectively "Windermere"). Neither Ashmore nor Quan is a party to this action. Williams alleged misrepresentation, violation of the Consumer Protection Act, civil conspiracy, and criminal profiteering among her causes of action. Windermere moved for summary judgment to dismiss Williams' claims, which the trial court granted. The court denied Windermere's motion for CR 11 sanctions.
Williams appeals.
SUMMARY JUDGMENT
Williams argues that Windermere misrepresented certain matters in connection with two residential real estate sales transactions. Specifically, she argues that Windermere misrepresented the values of the properties and failed to disclose the various listing prices for the properties. Because there is no merit to these arguments, we disagree.
A motion for summary judgment may be granted when there is "no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." A summary judgment motion must be supported by affidavits and set forth facts that would be admissible in evidence. The moving party bears the initial burden of showing the absence of an issue of material fact. If the moving party is a defendant who meets the initial burden, then the inquiry shifts to the party with the burden of proof at trial. If that party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," then the court should grant the motion. We review a summary judgment order de novo, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party. We may affirm on any ground supported by the record whether or not the trial court considered the argument.
CR 56(c).
CR 56(e).
Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 381-82, 46 P.3d 789 (2002).
Id.
Id. (quoting Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)).
Khung Thi Lam v. Global Med. Sys., 127 Wn. App. 657, 661 n. 4, 111 P.3d 1258 (2005).
State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
The relevant facts are undisputed. In 2001, Williams met Ashmore, a principal in Quan Holdings Investments, through her financial advisor.
Ashmore presented Williams with a real estate investment program. As described by Ashmore, he would identify properties that could be purchased, remodeled, and sold for substantial profits. The proposal was to involve Williams as the purchaser who would use her credit worthiness to obtain 100 percent financing for acquisition of the properties, debt service, and the cost of remodeling. A "sales assist fee" was to be paid by the seller to Quan from the proceeds of the loans at closing. These funds were to be used for debt service and remodeling costs. After the property was remodeled and sold, Williams was to receive 50 percent of the profits.
Ashmore contacted Julie Scozzafave, a real estate agent at Windermere Real Estate, to locate the properties for Williams. Scozzafave located two properties for Ashmore, which he described to Williams. Throughout the following transactions, Scozzafave dealt directly with Ashmore, never Williams.
The first property was Art Whittlesey's property located at 9620 NE 34th Street in Bellevue ("9620 property"). Whittlesey is a real estate agent for Windermere and was selling his 9620 property himself. Williams purchased the property for $740,000. The real estate purchase and sale agreement that she signed stated that Whittlesey agreed to pay $145,000 to Quan, at closing, as a sales assist fee.
Williams also purchased a second property located at 3421 96th Ave. NE in Clyde Hill ("3421 property"). Williams purchased the property for $649,900. The real estate purchase and sale agreement that Williams and Wellington Morris Corp., the seller, signed stated that Wellington agreed to pay Quan a sales assist fee of $99,900 at closing. Williams received $45,000 from this sales assist fee.
Misrepresentation
To prove fraud, Williams must prove by clear, cogent, and convincing evidence nine elements: (1) the representation of an existing fact; (2) its materiality; (3) its falsity; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person to whom it is made; (6) ignorance of its falsity on the part of the person to whom it is made; (7) the latter's reliance on the truth of the representation; (8) his right to rely upon it; and (9) his consequent damage.
Tokarz v. Frontier Fed. Sav. Loan Ass'n, 33 Wn. App. 456, 463, 656 P.2d 1089 (1982).
Among the reasons why Williams' misrepresentation claim fails is that she fails to establish any genuine issue of material fact that Windermere made a representation of an existing fact. Her failure to establish this element of her claim makes all other factual disputes immaterial for summary judgment purposes. Williams' argument that she has established material factual issues for this element is flawed for several reasons.
First, nothing in the record supports the argument that Windermere made a representation of existing fact as to the value of either property. Black's Law Dictionary defines "fair market value" as follows:
The price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction; the point at which supply and demand intersect.
Black's Law Dictionary 1587 (8th ed. 1999).
In contrast, and at most, Scozzafave communicated the sellers' listing prices of the two properties to Ashmore for ultimate communication to Williams.
Black's also defines "listing" as follows:
1. Real estate. An agreement between a property owner and an agent, whereby the agent agrees to try to secure a buyer or tenant for a specific property at a certain price and terms in return for a fee or commission.
Id. at 950-51.
Williams fails to cite any authority for the proposition that the listing price of the property represents that property's fair market value. At most, the listing price represents the starting point for negotiations between an owner and a prospective purchaser. And Williams fails to point to anything in the record to show that the listing agreements in this case made any representation that the properties in question had fair market values of any amount.
Second, and more importantly, Williams acknowledges that she signed both real estate purchase and sales agreements. Those agreements expressly state that sales assist fees were to be paid, at closing, out of the proceeds of the sales. In fact, she received $45,000 out of the $99,000 sales assist fee for one of the properties. Although she also testified that she did not read the purchase and sale agreements or the addendums before signing and initialing them, she is charged with knowledge of the contents of documents she signs. Parties have a duty to read the contracts they sign. A party who voluntarily signs a contract may not later attempt to avoid the contract based on ignorance of its contents.
Del Rosario v. Del Rosario, 152 Wn.2d 375, 385, 97 P.3d 11 (2004).
Skagit State Bank v. Rasmussen, 109 Wn.2d 377, 381, 745 P.2d 37 (1987).
Reasonable minds could not differ on whether she should have been aware that part of the prices she was paying for the two properties was for sales assist fees. Moreover, she does not contest that these fees were for debt service and remodeling. Assuming without deciding that the properties she purchased had values less than their purchase prices, that information was available to her when she signed the real estate purchase and sale agreements. Williams conceded that based on her experience in purchasing real estate, had she read the addenda with the $145,000 sales assist fee, she would have known that the seller increased the price to generate the sales assist fee.
Significantly, she fails to point to any evidence in the record that the values of the properties were less than the purchase prices she paid for them. Likewise, she fails to point to any evidence in the record that the sales prices, less the respective sales assist fees, were less than the fair market values of those properties.
Third, her argument that one seller's failure to disclose listing prices of the property is wholly unpersuasive. Williams fails to cite any authority for the proposition that Windermere had any duty to disclose that information. Likewise, there is nothing to show that the information was unavailable to her.
Obde v. Schlemeyer, 56 Wn.2d 449, 453, 353 P.2d 672 (1960) (sellers have a duty to inform prospective purchases of termite infestation when it is not readily observable upon reasonable inspection, regardless of the purchasers' failure to ask questions about the possibility of termites).
Williams argues that these transactions misrepresented matters to Williams' lenders. That argument does not raise any genuine issue of material fact respecting Williams' claims. No lenders are parties to this action, and nothing in the record indicates that she represents any lenders in this lawsuit.
In sum, Williams failed to show the existence of any genuine issue of material fact for her misrepresentation claim. Windermere is entitled to judgment as a matter of law on this claim.
Consumer Protection Act
Windermere argues that this court should not consider Williams' CPA claim because she fails to cite any authority to support her argument. We agree.
We do not consider arguments unsupported by legal authority. Accordingly, we do not consider this argument.
Pac. Sound Res. v. B.N.S.F. Ry., 130 Wn. App. 926, 940 n. 21, 125 P.3d 981 (2005), review denied, 145 P.3d 1214 (2006).
Civil Conspiracy
Williams next claims that Windermere engaged in a civil conspiracy. To establish a claim for civil conspiracy, Williams must prove by clear, cogent, and convincing evidence that (1) two or more people combined to accomplish an unlawful purpose, or combined to accomplish a lawful purpose by unlawful means; and (2) the conspirators entered into an agreement to accomplish the conspiracy. A finding of conspiracy may be based on circumstantial evidence. However, "[m]ere suspicion or commonality of interests is insufficient to prove a conspiracy."
All Star Gas, Inc. v. Bechard, 100 Wn. App. 732, 740, 998 P.2d 367 (2000).
Corbit v. J. I. Case Co., 70 Wn.2d 522, 529, 424 P.2d 290 (1967).
Bechard, 100 Wn. App. at 740.
Here, Williams fails to present any evidence that Scozzafave and Whittlesey "combined to accomplish an unlawful purpose." Moreover, there is nothing in the record to support a claim that they "combined to accomplish a lawful purpose by unlawful means."
Williams argues that because there were two addenda to the real estate purchase and sale agreement, this is evidence of an unlawful purpose to deceive someone about the value of the properties. But she could not have been among those allegedly deceived because she signed the addenda. Likewise, her claim that having two addenda is evidence that Windermere was trying to defraud the lenders is irrelevant to her claim against Windermere.
Summary dismissal of this claim was also correct.
Criminal Profiteering
Finally, Williams claims that Windermere engaged in criminal profiteering. We again disagree.
RCW 9A.82.100(1)(a) provides a cause of action for damages from a "pattern of criminal profiteering." Criminal profiteering means "any act . . . committed for financial gain, that is chargeable or indictable under the laws of the state in which the act occurred. . . ."
Williams claims that the chargeable act committed by Scozzafave and Whittlesey for financial gain was theft by deception. Theft by deception means "(b) By color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services. . . ."
Again, Williams fails to point to any evidence that Scozzafave or Whittlesey engaged in theft by deception or otherwise. These two transactions were sales of real estate for agreed prices. Williams obtained two properties and the sellers obtained the funds she paid them. There simply is no plausible claim that the necessary elements for this claim exist in this record.
Summary dismissal of this claim was also proper.
SANCTIONS
Windermere, pursuant to RAP 18.9, seeks sanctions against Williams' attorney. Williams fails to respond to this argument in its briefs on appeal. Nevertheless, we deny sanctions.
We may award attorney fees to a party responding to a frivolous appeal. "[A]n appeal is frivolous if there are no debatable issues on which reasonable minds might differ, and the appeal is so totally devoid of merit that there was no reasonable possibility of reversal."
RAP 18.9(a); Carrillo v. City of Ocean Shores, 122 Wn. App. 592, 619, 94 P.3d 961 (2004).
Carrillo, 122 Wn. App. at 619.
Here, this appeal is not so totally devoid of merit so as to preclude reversal. Accordingly, we deny the request for sanctions.
We affirm the summary judgment order.
WE CONCUR: