Elliott v. Barnes

• Decision Date: 28 May 1982
• Docket Number: No. 5137-1-II,5137-1-II
• Citation: 32 Wn.App. 88,645 P.2d 1136
• Parties: William L. ELLIOTT and Mona V. Elliott, husband and wife, Appellants, v. Timothy BARNES and Anne Barnes, husband and wife; Spot Realty, Inc., a Washington corporation; William Baty and "Jane Doe" Baty, husband and wife; Peacock Real Estate, Inc., a Washington corporation; and F. Steven Lequire and Patricia E. Lequire, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 88

32 Wn.App. 88

645 P.2d 1136

William L. ELLIOTT and Mona V. Elliott, husband and wife, Appellants, v. Timothy BARNES and Anne Barnes, husband and wife; Spot Realty, Inc., a Washington corporation; William Baty and "Jane Doe" Baty, husband and wife; Peacock Real Estate Inc., a Washington corporation; and F. Steven Lequire and Patricia E. Lequire, husband and wife, Respondents.

No. 5137-1-II.

Court of Appeals of Washington, Division 2.

May 28, 1982.

Jeffrey A. Smyth, Seattle, for appellants.

Michael McKasy, Tacoma, William L. Hess, Gig Harbor, for respondents.

WORSWICK, Judge.

Plaintiffs appeal a summary judgment of dismissal claiming that the trial court erred in ruling that the plaintiffs' release of a defendant effected the release of all other defendants. We affirm.

Plaintiffs (the Elliotts) purchased a parcel of real property from the defendant sellers (the Lequires). After the sale had closed and the plaintiffs had commenced building a home on the property, they discovered that their reliance on the seller's agents' representations regarding the property boundaries and the availability of utilities was misplaced. The boundary lines were approximately 100 feet off what had been described. Consequently, instead of being flat land, about one-third of the property lay on a steep bank. Utilities (water, sewer, and power) proved to be difficult and costly to obtain, contrary to the selling agents' representations that they could be had easily and cheaply.

Plaintiffs brought this action against the sellers, the listing agent (defendant Baty employed by defendant Peacock Real Estate) and the selling agent (defendant Barnes employed by defendant Spot Realty), alleging that the sellers were represented by the listing agent and selling agent, that the selling agent made intentional or reckless misrepresentations of material facts to the plaintiffs, that at least some of the information originated with the listing agent and that the plaintiffs justifiably relied on the misrepresentations to their detriment.

While the action was pending, plaintiffs released the defendant listing agent (Baty and Peacock) in return for substantial compensation. The written release instrument, executed in December, 1979, and January, 1980, states that all claims between the plaintiffs and the listing agent involved in this cause of action were "compromised, satisfied, and settled."

The trial court granted the selling agent's motion for summary judgment holding all defendants were joint tort-feasors and that plaintiffs' release of one released all. Plaintiffs' last ditch motions to amend their complaint and for reconsideration of the summary judgment were denied.

The dispositive question is whether the defendant listing and selling agents were joint or concurrent tort-feasors. ¹ On oral argument plaintiffs' counsel admitted that the instrument involved accomplished the total release of the listing agent and did not purport to reserve to plaintiffs any cause of action against any party. If the listing and selling agents were joint tort-feasors, the total release of the listing agent effected the release of the selling agent. J. E. Pinkham Lumber Co. v. Woodland State Bank, 156 Wash. 117, 286 P. 95 (1930); Litts v. Pierce County, 5 Wash.App. 531, 488 P.2d 785 (1971). On the other hand, if the listing and selling agents are properly characterized as concurrent tort-feasors, the release of one would not necessarily release the other. Litts v. Pierce County, supra; Callan v. O'Neil, 20 Wash.App. 32, 578 P.2d 890 (1978); Hawaiian Ins. & Guar. Co. v. Mead, 14 Wash.App. 43, 538 P.2d 865 (1975).

Generally, a joint tort occurs only where the behavior of two or more tort-feasors is such as to make it proper to treat the conduct of each as the conduct of the others as well. Rauscher v. Halstead, 16 Wash.App. 599, 557 P.2d 1324 (1976). Where distinct actors work in concert according to a general plan in committing a single tort they are joint tort-feasors, Michigan Millers Mut. Fire Ins. Co. v. Oregon-Washington R.R. & Nav. Co., 32 Wash.2d 256, 201 P.2d 207 (1948). Joint tort-feasors must act in concert in committing the wrong or their acts, if independent of each other, must breach a joint duty and unite in causing a single injury. Seattle-First National Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 588 P.2d 1308 (1978); DeMaris v. Brown, 27 Wash.App. 932, 621 P.2d 201 (1980). Under the California formula, which has been recognized by our courts, the following three elements must all exist: (1) A concert of action; (2) a unity of purpose or design; (3) two or more defendants working separately but to a common purpose and each acting with the knowledge and consent of the others. Rauscher v. Halstead, supra; Litts v. Pierce County, supra; Poe v. Sheeley, 19 Wash.App. 833, 578 P.2d 63 (1978).

Plaintiffs allege a single source of their harm, the misrepresentation of material facts regarding the property they purchased. The listing and selling agents participated in the transaction with a single purpose, to locate a purchaser for the property. Although they owe their...