Thomas v. Camano Island Realty, Inc., No. 58533-9-I (Wash. App. 10/1/2007)
| Decision Date | 01 October 2007 |
| Docket Number | No. 58533-9-I.,58533-9-I. |
| Court | Washington Court of Appeals |
| Parties | G. THOMAS RUEBEL AND DIANE E. RUEBEL, Respondents, v. CAMANO ISLAND REALTY, INC., a CORPORATION, AND SONYA EPPIG, Appellants. |
Appeal from Island Superior Court. Docket No. 03-2-00516-3. Judgment or order under review. Date filed: 06/08/2006. Judge signing: Honorable Vickie I Churchill.
Counsel for Appellant/Cross-Respondent, Jeffrey Paul Downer, Lee Smart Cook Martin & Patterson PS, 701 Pike St Ste 1800, Seattle, WA, 98101-3929.
Matthew F. Davis, Attorney at Law, 5224 Wilson Ave S Ste 200, Seattle, WA, 98118-2587.
Counsel for Respondent/Cross-Appellant, John Wentworth Phillips, Phillips Law Group PLLC, 315 5th Ave S Ste 1000 Seattle, WA, 98104-2682.
Based on the failure to disclose inspection and permitting problems with the house they purchased, Thomas and Diane E. Ruebel (the Ruebels) sued Windermere/Camano Island Realty, Inc. (Camano Realty) and its real estate agent, Sonya Eppig, for breach of fiduciary duty, negligence, fraudulent concealment, misrepresentation, and violation of the Consumer Protection Act, chapter 19.86 RCW (CPA). At the conclusion of a two-week trial, the jury rejected the Ruebels' claim for fraudulent concealment, but found in their favor on negligence, breach of fiduciary duty, and violation of the CPA. The jury awarded the Ruebels approximately $126,300 for the CPA claim and approximately $34,000 for the negligence and breach of fiduciary duty claims, attributing 30 percent of the fault to Camano Realty. Camano Realty and Eppig appeal the trial court's decision denying their motion for judgment as a matter of law on the CPA claim and the court's entry of judgment on the verdict against them. Camano Realty and Eppig also challenge the trial court's award of approximately $311,000 in attorney fees on the CPA claim. In their cross appeal, the Ruebels challenge the court's decision to not include the amount the jury awarded for the negligence and breach of fiduciary duty claims.
Because substantial evidence supports the jury's determination that Camano Realty and Eppig violated the CPA and the jury's decision to attribute fault to Camano Realty and Eppig, we affirm the court's denial of the motion for judgment as a matter of law and entry of the judgment on the verdict. We also affirm the trial court's decision to not include the amount awarded on the negligence and breach of fiduciary duty claims. But because the trial court did not enter findings of fact and conclusions of law to support the award of attorney fees, we reverse the attorney fee award and remand.
Mike and Marilyn Hovis (Hovis) owned a Victorian-style waterfront house on Camano Island with a detached three car garage and loft apartment on a four acre parcel of property. In 1995, Hovis obtained a permit from the Camano Island County Building Department (Building Department) to remodel the main house. Mike Hovis acted as the general contractor for the remodel.
In January 1996, the Building Department told Hovis that he needed to address several framing issues and the structural engineering requirements for the two-story house. The Building Department told Hovis he needed to submit approved engineering plans and framing specifications. Without submitting the requested information, Hovis proceeded with the installation of the interior wallboard and exterior siding. In 1997, the building permit expired.
From 2000 to 2001, Hovis listed the property for sale with Windermere/Camano Island Realty (Camano Realty). Camano Realty advertised the property as a Victorian waterfront estate with an unfinished interior. During the two years that Camano Realty listed the Hovis property for sale, two offers were made and then rescinded. In the spring 2001, Hovis, one of the potential buyers, and a Camano Realty agent met with the Building Department about the status of the expired building permit. The Building Department examiner, Ben VanDuine, described the outstanding inspections that still needed to be done, including the framing, plumbing, and electrical inspections. In addition, VanDuine told Hovis, the prospective buyer, and the Camano Realty agent that the work had to comply with the Uniform Building Code (UBC) and approved plans and updated engineering calculations had to be submitted to the Building Department.
In late 2001, Hovis hired a contractor, Stephen Redmond, to finish the remodel. Redmond applied for a new building permit for the remodel. Although Hovis had not obtained the necessary inspections or submitted engineering plans and calculations, in December 2001, the Building Department issued a new building permit to Redmond.
In 2002, Hovis listed the property for sale with Preview Realty and real estate agent Roger Nelson. In early spring, the Ruebels contacted their Seattle neighbor, Rene Stern, a Windermere real estate agent, about their interest in purchasing the Hovis property. Stern agreed to act as the Ruebels' agent for the Seattle house but referred them to Sonja Eppig, a Windermere real estate agent with Camano Realty, for the Hovis property. In April 2002, Eppig met with the Ruebels. At the meeting she gave them a copy of the Real Property Transfer Disclosure Statement for the Hovis Property, Puget Sound Multiple Listing Form 17 (Form 17). In Form 17, Hovis states that they had been remodeling the house since 1996 and all the building permits are current. Hovis also states that they did not know if there were any restrictions on the property that would affect future construction or remodeling or any other material defects affecting the property that a prospective buyer should know about. On April 16, the Ruebels made an offer to purchase the Hovis property contingent on an inspection and study to determine the feasibility of the floor plan and the cost of finishing the remodel.
In the April 27 addendum to the Purchase and Sale Agreement, Hovis represented that:
The inspection report raised a number of concerns, including questions about the status of the building permit and inspections for the remodeling work. The report specifically notes that there was no framing inspection certificate and recommended checking with the Building Department.
On April 29, the Ruebels met with Eppig to go over the inspection report. According to Tom Ruebel, Eppig agreed to check with the Building Department on the status of the permit and the inspections. Eppig denied agreeing to check on the status of the permit and the inspections, but admitted that she met with VanDuine and learned that the Building Department needed building and engineering plans.
Hovis' contractor, Redmond, testified that at approximately 11:15 a.m. on May 6, Eppig called to tell him that the Building Department was going to send him a letter suspending the building permit because updated building and engineering plans were never submitted.1 Tom Ruebel testified that Eppig unexpectedly called him on May 6 to recommend extending the deadline for the feasibility study because the Building Department needed some engineering plans, which she agreed to obtain.
On May 6, the Building Department suspended the permit. In the May 6 letter to Redmond, the Building Department states that the permit was erroneously issued. The letter also states that the permit will not be reinstated unless Hovis addressed the issues identified during the framing consultation in 1996 and provided updated engineering plans that complied with the 1997 UBC. Eppig did not tell the Ruebels that the Building Department had suspended the building permit. Sometime after May 6, Eppig obtained some engineering information from Preview Realty and requested building plans from Hovis' architect.
On May 7 or 8, Eppig sent the Ruebels an extension until May 15 for the feasibility study and assured them that there was no problem with complying with the Building Department's request for the engineering information.
Enclosed are copies of the engineers [sic] report. I talked with Ben at County. They are okay. He does want the engineer's stamp and license number, so I will get that. Also included are the signatures from the seller re: the extension of the feasibility study. Sincerely, Sonya.
Contrary to Eppig's assurances, VanDuine testified that he told Eppig the engineering data she provided was inadequate and that before reinstating the permit, the Building Department needed additional data, including lateral engineering calculations.
Tom Ruebel testified that Eppig called him before May 14 to tell him that the issues with the Building Department were resolved and they could release the feasibility contingency. On May 15, the Ruebels waived the feasibility contingency.
Nelson testified that sometime after May 15, Eppig told him the Building Department had identified problems with the building permit and the required inspections on the house. She asked Nelson to meet with the Building Department because the Ruebels were concerned about the status of the building permit and they were going to refuse to close on June 17 unless the problem was solved.
On June 7, Nelson faxed a proposed addendum to Eppig. According to Nelson, the purpose of the addendum was to notify the Ruebels that the construction was not approved by the Building Department. The addendum states that the engineering work is not complete, the building plans may not meet the 1997 UBC requirements, and the seller is not responsible for meeting the UBC requirements.2 Eppig told Nelson the addendum was unacceptable and helped draft a revised addendum. The revised addendum states that...
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