Opinion
No. 64254-5-I.
January 10, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-2-13077-1, Christopher A. Washington, J., entered September 4, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Dwyer, C.J., and Becker, J.
Courtney and Jenny Shimada appeal the trial court's CR 12(c) order dismissing certain claims against Quadrant Corporation ("Quadrant") based on the statute of repose. They also appeal summary judgment orders dismissing other claims against Quadrant, Weyerhaeuser Real Estate Company ("WRECO"), and Weyerhaeuser Company ("Weyerhaeuser"). Finally, they claim that the trial court abused its discretion by denying their CR 56(f) motion to continue the summary judgment hearing on WRECO's and Weyerhaeuser's motion. We affirm.
In early 2003, the Shimadas visited a Quadrant home site and questioned Quadrant representatives about the quality of the homes. The representatives never mentioned that any mold or moisture issues were common to Quadrant homes. A few months later, the Shimadas purchased a used Quadrant home from the Santos family, rather than from Quadrant. Quadrant completed construction of the home in late 2000.
In December 2007, the Shimadas discovered a defective dryer vent. Courtney Shimada contacted Quadrant for reimbursement of the repair costs and requested that it investigate potential mold and moisture problems caused by the defect. Although it did not sell the home to the Shimadas, Quadrant provided a full reimbursement for the repair costs. It also agreed to investigate the home for mold problems. By the first week of January, representatives from Quadrant visited the home, confirmed that mold was present, prepared a remediation plan, and delivered the plan to the Shimadas.
Courtney Shimada objected to the remediation plan for a number of reasons. His primary objection was that it did not contain preremediation verification of the current air quality in the home. Additionally, it did not memorialize small repairs that Quadrant orally agreed to make, provide assurances about the future value of the home, or include a warranty for the repairs. For these reasons, the Shimadas never authorized Quadrant to begin the proposed remediation.
The Shimadas sued Quadrant, Quadrant's parent company WRECO, and WRECO's parent company Weyerhaeuser in April 2008.
Quadrant moved for CR 12(c) dismissal of the Shimadas' claims relating to original construction defects based on the statute of repose. That statute requires that plaintiffs bring claims related to original construction defects within six years of the substantial completion of construction. The court granted the motion, holding in relevant part:
2. Any and all claims or causes of action asserted against The Quadrant Corporation in this matter arising from the original design, planning, construction, or supervision or observation of construction of the house at issue be and the same hereby are DISMISSED WITH PREJUDICE;
3. Any and all claims or causes of action asserted against The Quadrant Corporation in this matter arising from the alleged nondisclosure of alleged original construction defects be and the same hereby are DISMISSED WITH PREJUDICE. . . .
Clerk's Papers at 112 (emphasis added).
Although the Shimadas designate this order in their notice of appeal, they do not brief any issues arising from this order. In any event, briefing the issue would not lead to any different result in this case. The record fully supports the dismissal of construction defect claims because more than seven years elapsed between the substantial completion of construction in 2000 and commencement of this lawsuit.
Quadrant, WRECO, and Weyerhaeuser later moved for summary judgment on all remaining claims. The Shimadas moved for a continuance on the summary judgment motions by WRECO and Weyerhaeuser. The court granted both motions for summary judgment and denied the motion for a continuance.
The Shimadas appeal.
DISMISSAL OF CLAIMS AGAINST QUADRANT
The Shimadas argue that the trial court erred in determining that there were no genuine issues of material fact with respect to their claims against Quadrant for violations of the Consumer Protection Act ("CPA"), fraud, negligent misrepresentation, and outrage. 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. When a defendant moves for summary judgment, it bears the initial burden of showing the absence of an issue of material fact. If a defendant makes that initial showing, then the burden shifts to the plaintiff to establish that there is a genuine issue for the trier of fact. The plaintiff may not rely on speculation or on having his or her own affidavits accepted at face value, but must put forth specific facts showing the existence of a triable issue.
CR 56(c).
Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
Id.
Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
If . . . the plaintiff "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 trial court should grant the motion . . . "In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
This court reviews de novo a trial court's order granting summary judgment, taking all facts and inferences in the light most favorable to the nonmoving party. We may affirm on any basis supported by the record.
Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wn.2d 489, 497, 210 P.3d 308 (2009) (citingBiggers v. City of Bainbridge Island, 162 Wn.2d 683, 693, 169 P.3d 14 (2007)).
State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004) (citing In re Marriage of Rideout, 150 Wn.2d 337, 358, 77 P.3d 1174 (2003)).
Consumer Protection Act
Washington's CPA makes unlawful "`[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. . . .'" Proof of five elements is required: (1) an unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) a public interest impact; (4) injury to the plaintiff in his or her business or property; (5) and causation.
Svendsen v. Stock, 143 Wn.2d 546, 553, 23 P.3d 455 (2001) (quoting RCW 19.86.020).
Id. (citing Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986)).
Whether an action is an unfair or deceptive act is a question of law. We review questions of law de novo.
Svendsen, 143 Wn.2d at 553 (citing Keyes v. Bollinger, 31 Wn. App. 286, 289, 640 P.2d 1077 (1982)).
Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
Here, the Shimadas argue that Quadrant was aware of widespread mold and moisture problems in 2003 and its failure to disclose that information to them was unfair and deceptive. Assuming, without deciding, that this claim is not barred by the plain words of the CR12(c) order, we conclude that the Shimadas fail to show that there was an unfair or deceptive act as a matter of law.
The Shimadas cite as evidence of Quadrant's knowledge two pleadings, two depositions, a service contract, and approximately 300 pages of repair records. The pleadings are not evidence. The service contract was effective beginning in 2005 and is not probative of knowledge in 2003, when the Shimadas purchased their home from the Santos family. The deposition of Quadrant employee Dominic Menchaca described the company's response to mold problems discovered in 2004. Again, this is after the Shimadas' purchase of the home in 2003. The deposition of Michael Smith, an AMEC Earth and Environmental employee, describes mold remediations performed for Quadrant. It does not indicate when the remediations occurred. Therefore, neither deposition is probative of Quadrant's alleged knowledge of widespread mold and moisture problems in 2003 or before. Finally, the repair records relate to repair work Quadrant or its agents performed on homes for broken pipes, leaking shower stalls, defective shower valves, and other water leaks. This is not evidence of widespread mold and moisture problems, but rather routine water-related repairs made to approximately 30 homes before 2003.
AMEC Earth and Environmental is the company Quadrant uses to remediate mold and moisture issues in its homes.
Quadrant's alleged failure in 2003 to disclose to the Shimadas the widespread existence of mold and moisture in its homes, where there is no evidence that Quadrant then had knowledge of such a condition, is not an unfair or deceptive act, as a matter of law. Therefore, the Shimadas have failed to show any genuine issue of material fact for the first element of their CPA claim.
The Shimadas argue that McRae v. Bolstad, Griffith v. Centex Real Estate Corporation, and Carlile v. Harbour Homes, Inc. are persuasive. In each of those cases the court held that there was an unfair or deceptive act because the defendants had a duty to disclose known material defects in a home and failed to do so. Because the Shimadas have failed, on this record, to show any evidence that Quadrant knew about widespread mold and moisture problems in 2003, these cases are unpersuasive.
101 Wn.2d 161, 676 P.2d 496 (1984).
93 Wn. App. 202, 969 P.2d 486 (1998).
147 Wn. App. 193, 194 P.3d 280 (2008).
McRae, 101 Wn.2d at 166; Griffith, 93 Wn. App. at 214 (citing Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wn. App. 39, 51, 554 P.2d 349 (1976));Carlile, 147 Wn. App. at 212-13.
Additionally, the Shimadas have failed to show that Quadrant committed an unfair or deceptive act in 2007. They argue that Quadrant's failure to disclose known mold and moisture problems in other homes during the investigation of their own home was an unfair or deceptive act. This is unpersuasive.
Preliminarily, it is important to note that Quadrant had no duty to investigate the complaints of the Shimadas. The Shimadas purchased the home from the Santos family, not Quadrant. Thus, there is no implied warranty of habitability between Quadrant and the Shimadas.
See Carlile, 147 Wn. App. at 202-03 ("[T]he supreme court and other courts in this state have consistently refused to expand liability of developers to those beyond the first purchasers of new homes.").
Nevertheless, Quadrant investigated the Shimada's home, confirmed the presence of mold in the home, and agreed to fully remediate the problem. Although the Shimadas take issue with the scope of the proposed remediation, they have failed to explain why these actions constitute unfair or deceptive practices by Quadrant, as the first element of a CPA claim requires. Therefore, the Shimadas have failed to show the existence of any genuine issue of material fact as to the existence of an unfair or deceptive act in 2007.
Because the Shimadas failed to show the existence of an unfair or deceptive act in 2003 and 2007, an essential element for any CPA claim, there can be no other genuine issues of material fact. Summary judgment was proper on this claim.
Fraud
Fraud requires proof of nine elements: "(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." Failure to disclose a material fact is a "representation" if it is "likely to affect a prospective buyer's judgment as to whether the buyer should purchase the property."
Stieneke v. Russi, 145 Wn. App. 544, 563, 190 P.3d 60 (2008) (citing Stiley v. Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996)).
Ross v. Ticor Title Ins. Co., 135 Wn. App. 182, 190, 143 P.3d 885 (2006).
Here, the Shimadas argue that Quadrant's alleged failure to disclose widespread mold and moisture problems was fraudulent because Quadrant had knowledge of such problems in 2003. But, as we already discussed, there is no evidence that Quadrant had such knowledge in 2003. Thus, the Shimadas have failed to satisfy the fourth element of fraud: Quadrant's knowledge of the falsity of its non-disclosures. Therefore, the Shimadas have not met their burden to show a genuine issue of material fact on this critical element of the fraud claim. Accordingly, no other factual disputes with respect to the other elements of fraud are material for purposes of summary judgment.
The Shimadas contend that their claim of fraud is supported byWilkinson v. Smith and Obde v. Schlemeyer. We disagree.
31 Wn. App. 1, 639 P.2d 768 (1982).
56 Wn.2d 449, 353 P.2d 672 (1960).
In both Wilkinson and Obde, there was a duty to disclose information, and a misrepresentation resulted from subsequent nondisclosure. Because the Shimadas failed to meet their burden of proof for Quadrant's knowledge of falsity, Quadrant had no duty of disclosure and these cases are not persuasive.
Wilkinson, 31 Wn. App. at 6-7; Obde, 56 Wn.2d at 453.
Additionally, the Shimadas failed to prove that they relied on Quadrant's non-disclosure of mold problems in other homes in 2007. They argue that the non-disclosures compelled them to continue to reside in their home despite Quadrant's admission of the existence of mold in their home. Reasonable minds could not differ on whether the Shimadas remained in their home based on a non-disclosure of mold issues in other Quadrant homes. It is undisputed on this record that they chose to stay in their home with full knowledge that it contained mold after rejecting Quadrant's offer to remediate the problem.
The Shimadas argue that under Westby v. Gorsuch, their reliance on Quadrant's non-disclosures was justified. However, the Shimadas failed to show any genuine issues of material fact for reliance, so justifiable reliance is not material and Westby is not persuasive.
112 Wn. App. 558, 573-75, 50 P.3d 284 (2002).
Because the Shimadas failed to show the existence of genuine issues of material fact for one of the essential elements of fraud in both 2003 and 2007, no other factual issues are material and summary judgment was proper.
Negligent Misrepresentation
The tort of negligent misrepresentation requires six elements: "(1) the defendant supplied information for the guidance of others in their business transactions that was false, (2) the defendant knew or should have known that the information was supplied to guide the plaintiff in his business transactions, (3) the defendant was negligent in obtaining or communicating the false information, (4) the plaintiff relied on the false information, (5) the plaintiff's reliance was reasonable, and (6) the false information proximately caused the plaintiff damages." "An omission alone cannot constitute negligent misrepresentation, since the plaintiff must justifiably rely on a misrepresentation."
Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007) (citing Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002)).
Id. at 499-500 (citing Trimble v. Wash. State Univ., 140 Wn.2d 88, 97-98, 993 P.2d 259 (2000)).
Because any non-disclosure on the part of Quadrant was an omission, the Shimadas have presented no evidence of a misrepresentation in 2003 or 2007. Therefore, there can be no genuine issues of material fact on any other element and summary judgment on negligent misrepresentation was proper.
The Shimadas argue that Lawyers Title Ins. Corp. v. Baik supports their reasonable reliance on Quadrant's non-disclosures. But, because the Shimadas did not show that there was a misrepresentation, Baik is not persuasive.
147 Wn.2d 536, 55 P.3d 619 (2002).
Outrage
To prove outrage, a plaintiff must show "extreme and outrageous conduct, intentional or reckless infliction of emotional distress, and resulting severe emotional distress." The Shimadas presented no evidence, expert or otherwise, that they have suffered severe emotional distress. This is fatal to their outrage claim. Summary judgment was proper.
Corey v. Pierce County, 154 Wn. App. 752, 763, 225 P.3d 367 (2010) (citing Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989)).
DISMISSAL OF REMAINING CLAIMS CR 56(f)
The Shimadas argue that the trial court erred in denying their CR 56(f) motion for a continuance because Weyerhaeuser and WRECO failed to produce any documents during discovery. We disagree.
Under the Civil Rules, a party may request that a motion for summary judgment be denied if additional discovery is needed to defend the motion. A court may deny a continuance under CR 56(f) if: (1) the requesting party fails to offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party fails to state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact. "Only one of the qualifying grounds is needed for denial."
CR 56(f).
Gross v. Sunding, 139 Wn. App. 54, 68, 161 P.3d 380 (2007) (citing Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989)).
Id. (citing Pelton v. Tri-State Mem'l Hosp., 66 Wn. App. 350, 356, 831 P.2d 1147 (1992)).
This court reviews the denial of a motion for continuance for abuse of discretion. A decision is an abuse of discretion if it is outside the range of acceptable choices given the facts and the applicable legal standard.
Id. 67-68 (citing Turner, 54 Wn. App. at 693).
In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997) (citing State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)).
Here, the trial court denied the motion because the Shimadas did not offer a good reason for their delay in obtaining this evidence. Although Weyerhaeuser and WRECO did not provide any documents in discovery, the Shimadas failed to obtain any evidence from Quadrant implicating Weyerhaeuser or WRECO during the seventeen-month lawsuit. Given this substantial amount of time, the trial court did not abuse its discretion in denying the motion.
The Shimadas argue that Tellevik v. Real Property Known as 31641 West Rutherford Street is persuasive. In that case, the court held that denying the plaintiffs' CR 56(f) motion for a continuance was improper because they set out specific facts they hoped to learn in discovery. Because the trial court denied the motion on another acceptable basis,Tellevik is not persuasive.
120 Wn.2d 68, 838 P.2d 111 (1992).
Summary Judgment for Weyerhaeuser and WRECO
The Shimadas argue that the trial court erred in granting defendants Weyerhaeuser and WRECO's motion for summary judgment because genuine issues of material fact exist regarding their liability. We disagree.
Here, the Shimadas do not claim that Weyerhaeuser or WRECO employees were directly involved in their 2003 and 2007 interactions with Quadrant. All of their claims against Weyerhaeuser and WRECO relate to those companies' alleged knowledge of defects in Quadrant homes and their complicity in permitting Quadrant not to disclose the defects to homeowners and potential buyers. Because the Shimadas did not meet their burden to show a genuine issue of material fact for any of their claims against Quadrant, there can be no genuine issue of material fact that Weyerhaeuser and WRECO are liable. Summary judgment in favor of Weyerhaeuser and WRECO was proper.
We affirm the orders on appeal.