### FILED DECEMBER6, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE NOEL MOON, a singlewoman, ) No. 33614-0-111 ) Plaintiff, ) ) DERALD HAUCK, a single man, ) ) Appellant, ) ) V. ) UNPUBLISHED OPINION ) WILLIAMBARRand DIANABARR, ) husband andwife andtheirmarital ) community; JEANINEBURNS and ) JOHNDOEBURNS, wife andhusband ) and theirmarital community; and SOLEIL ) REAL ESTATE OF SPOKANE, LLC., a ) Washington limited liability corporation, ) ) Respondents. ) LAWRENCE-BERREY, A.CJ.

- HousepurchaserDeraldHauckappealsthe summaryjudgmentdismissal ofhis claims againsthouse sellers WilliamBarrandDiana Barr, theirreal estate agent\daughterJeanine Bums, andher employer SoleilReal Estate ofSpokaneLLC (Soleil). The claims arose afterMr. Hauck's daughter, Noel.Moon, discovered old animal feces andurine undernewly installed carpet.No. 33614-0-III Moon v. Barr
Circumstantial evidence supports Mr. Hauck's claimthat Mr. Barrknew ofand fraudulently concealedthe animal feces and urine. Circumstantial evidence also supports Mr. Hauck's claim that Ms. Bums knew ofand failed to disclose the concealedproblem. Further, a question offact is presented as to whetherMr. Hauck, through his daughter, made sufficient inquiry aboutthe animal smell beforehepurchasedthe house. We conclude the trial court erredwhen it summarily dismissed Mr. Hauck's fraudulent concealment and ConsumerProtection Act (CPA), chapter 19.86 RCW, claims against the defendants. Butwe concludethe trial court did not err when it summarily dismissed Mr. Hauck's breach ofcontract claim against the Barrs and his negligent misrepresentation claims against the defendants. Wetherefore reverse in part and affirm in part. FACTS Because the trial court dismissed this case on summaryjudgment, we presentthe facts and all reasonable inferences in the light most favorable to Mr. Hauck, the nonmovingparty. In 1996, the Barrs boughtthe subjecthouse. The Barrs rented the house to one set oftenants from 1996 to around 2010. Neighbors ofthe renters said therenters hadpets, and for several years allowedtheirpets to urinate and defecate throughout the house. One ofthe neighbors said she would wear a differentpair ofshoes when she visited the renters so she would not track animal urine or feces back into her ownhouse. She said her feet would actually sink in the floor due to the amount ofurine and feces.
2No. 33614-0-III Moon 

### v. Barr
Mr. Barrvisited the house once ortwice a yearwhenthe renters neededrepairs. He was concerned aboutthe condition ofthe house, and asked the renters to clean the place up. He claims he never saw or smelled any animal feces orurine in the house. Afterthe renters moved out in 2010, Mr. Barrwent into the house and determined it was a mess. There wereholes in the wall, tears in the vinyl, and the carpets needed to be replaced. Mr. Barr did a lot ofthe workhimself. Hebought new carpet and hired carpet layers. He was in and out ofthe house afterthe layers removed the old carpet and padding and before they installed the new carpet. Mr. Barr's daughter, Ms. Burns, was a real estate agent for Soleil. Mr. Barrasked herto sell the house. Ms. Burns did not help prepare the house for sale. When deposed, she said she went into the house only once while it was underrepair. She noticed tarps
on the floor. She was inside for abouttwo minutes, handedher father his lunch, and left. The nexttime she sawthe house it was "pictureready," and she tookpictures ofit to list. Clerk's Papers (CP) at 397. She claims she never noticed any animal smells in the house. Ms. Burns listed the house in January 2012. The house was on the market for about 12 months. Duringthis time, Ms. Burns held two open houses for brokers only. During one ofthe two open houses, one broker and one lendertold her "they could smell animal." CP at 402. The house was shown about 20 times to potentialpurchasers. Mr. Hauckbecame interested in buying the house for his daughter, Ms. Moon, who lived in Montana. Ms. Moon wanted to move to Spokane so her disabled daughter could be closerto health care facilities in Spokane. Ms. Moon, nother dad,
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communicated with her dad's real estate agent and with Ms. Burns. This was because the house was intended for heruse, her dad's hearing was poor, and her dad hadpoor telephone reception where he lived. On October 9, 2012, Mr. Hauck entered into a purchase and sale agreement to purchase the property. The purchase and sale agreement listed Ms. Burns as the listing agent, and Soleil as the listing broker. The agreement also contained an inspection addendum, which conditioned the agreement "on Buyer's subjective satisfactionwith inspections ofthe Property
...." CP at 240. On October 18, 2012, Mr. Hauck had the property inspected. Theproperty inspection report noted "[a] very strong pet urine smell
...in the home. This smell may be difficult to remove." CP at 23. Another commentnoted that cats had accessed the crawl space under the home and usedthe dirt floor as a litterbox. As the sellers' agent, Ms. Bums never received a copy ofthe home inspection report. A few days afterthe inspection, Ms. Moon discussed the entire inspectionreport with the inspector for over an hour. Among other concerns, Ms. Moon was concerned about the urine smell because she never smelled it. The inspector told her he had a sensitive nose to dogs and cats. The inspector said the smell couldbe from cats using the crawl space as a litter box. The inspector also said the smell couldbe on the painted walls or trapped in the carpet itselffrom pets previously in the home. Ms. Moon and the inspector discussed the costs to remove the smell ifthe smell
was in the carpet. The inspector suggested Ms. Moon find outthe type and quality of
4No. 33614-0-III Moon v. Barr
wood that was underthe carpet so she could have an idea ofwhat it would cost to refinish the floor ifshe decided to remove the carpet. Ms. Moon telephoned Ms. Bumsto discuss the inspection report. Ms. Moon discussed the urine smell the inspector noticed, and recappedthe discussions she had with the inspector. Ms. Burns claimed she did not notice a urine smell and had not seen any pet stains. Ms. Moon said she was considering removing all ofthe carpet or repainting the walls. Ms. Moon asked during this call, and later in a different conversation, what kind ofwood was underthe carpet. In the later conversation, Ms. Burns saidthe Barrs did not remember. Neither Mr. Hauck nor his daughter ever spoke with the Barrspriorto the sale of the house. Almost all discussions were between Ms. Moon and Ms. Burns. This was because Ms. Burns "made it clearthat she was the only source ofcommunicationto her clients." CP at 427. On November 5, 2012, Ms. Moon called Ms. Burns and explained she had switched lenders and needed a new purchase and sale agreement. On November 10, 2012, the parties entered into a second agreement. Mr. Hauck's agent asked Mr. Hauck to waive the inspection for purposes ofthe second agreement. Mr. Hauck signed the waiver, agreeing that Buyerhas been advised to obtain a building
... inspection, and to condition the closing ofthis Agreement on the results ofsuch inspections, but Buyer elects to waive the right and buy the Property in its present condition. Buyer acknowledges thatthe decision to waive Buyer's inspection options



### 5No. 33614-0-III Moon v. Barr

was based on Buyer'spersonal inspection and Buyerhas not relied on representations by Seller, Listing Broker or Selling Broker. CP at 75. This second agreement included a seller disclosure statement. In that statement, the Barrs did not disclose the existence ofanimal feces and urine underthe new carpet. They verified, other than those defects disclosed, there were no "other existing material defects affecting the property that aprospective buyer should know about." CP at 81. The disclosure statement further provided: A. Buyerhas a duty to pay diligent attention to any material defects that are known to Buyer or can be known to Buyerby utilizing diligent attention and observation. B. The disclosures set forth in this statement and in any amendments to this statement are made only by the Seller and not by any real estate licensee or otherparty. C. Buyer acknowledges that, pursuant to RCW 64.06.050(2), real estate licensees are not liable for inaccurate information providedby Seller, except to the extent that the real estate licensees know ofsuch inaccurate information. CP at 81. Ms. Moon visited the house at least two times before closing. Eachtime, she noticed air fresheners in the house. Mr. Hauck and the Barrs signed closing documents in mid-December 2012. Before moving into the house, Ms. Moon told Ms. Bums she was goingto rent a shampooer to clean the carpets. Ms. Bums said that, would not be necessary because the carpets were brand new. Ms. Bums latertold Ms. Moon she had been in the house prior to it being cleaned and described the house as "'trashed.'" CP at 426.
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In January 2013, Ms. Moon and Mr. Hauck obtained the keys from Ms. Bums and went through the house with her. Ms. Moon noticed multiple air fresheners inside the home. She described them as "overpowering" and said they "burned [her] nasal passages." CP at 428. Ms. Bums even sprayed air freshener as they walkedthrough the house. Ms. Bums told Ms. Moon she always sprayed houses thathad been sitting closed. Before leavingthat day, Ms. Moon turned on the heat. Ms. Moon next went into the house in February 2013. The heating ofthe house caused the animal smell to be very noticeable. She determinedthe smell did not emanate from under the house. Ms. Moon then pulled up the new carpets and saw old animal feces and urine. Mr. Hauck and Ms. Moon filed suit against the Barrs, Ms. Bums, and Soleil. They asserted fraudulent concealment, negligent misrepresentation, and CPA claims against all defendants. Mr. Hauck also asserted breach ofthe purchase and sale agreement against the Barrs. After discovery, the defendants moved for summaryjudgment. The trial court granted the motion. As to Ms. Moon, the trial court determined she did nothave legal or equitable standing because she was never a party to the purchase and sale agreement. As to Mr. Hauck, the trial court determined he failed to make areasonable inquiry ofthe sellers concerning the animal smell made known to him by the inspectionreport. Only Mr. Hauck appeals.

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ANALYSIS This court reviews a summaryjudgment order de novo, engaging in the same inquiry as the trial court. Kim v. LakesideAdultFamilyHome, 185 Wn.2d 532,547,374 P.3d 121 (2016). Summaryjudgmentis appropriate only if"thepleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a matter oflaw." CR 56(c). A material fact is one the outcome ofthe litigation depends on. In re Estate of Black, 153 Wn.2d 152, 160, 102 P.3d 796 (2004). This court views all facts and reasonable inferences from those facts in the light most favorable to the nonmoving party. Kim, 185 Wn.2d at 547. Summaryjudgmentis appropriate only ifreasonable persons could reach but one conclusion from all the evidence. Id. When reviewing a civil case in which the standard ofproofis clear, cogent, and convincing evidence, this court "'must view the evidence presented through the prism of the substantive evidentiary burden."' Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008) (quotingAnderson v. LibertyLobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)); see also Gossett v. Farmers Ins. Co. ofWash., 133 Wn.2d 954, 973, 948 P.2d 1264 (1997). The burden ofprooffor negligent misrepresentation and fraudulent concealment claims is clear, cogent, and convincing evidence. Barish v. Russell, 155 Wn. App. 892, 905 n.7, 230 P.3d 646 (2010); Stieneke v. Russi, 145 Wn. App. 544, 561, 190 P.3d 60 (2008). Thus, this court must determine whether, viewing
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the evidence in the light most favorable to Mr. Hauck, a rational trier offact could find that he supported his fraudulent concealment and negligent misrepresentation claims with clear, cogent, and convincing evidence. See Woody, 146 Wn. App. at 22. A. FRAUDULENT CONCEALMENT Mr. Hauck argues the trial court erred in dismissing his fraudulent concealment claim. A buyer ofresidential property bringing a claim for fraudulent concealmentmust establish (1) the residential dwelling has a concealed defect; (2) the sellerhas knowledge ofthe defect; (3) the defect is dangerous to the purchaser's property, health, or life; (4) the defect is unknown to the purchaser; and (5) the defect would not be disclosed by a careful, reasonable inspection by the purchaser. Alejandre v. Bull, 159 Wn.2d 674,689, 153 P.3d 864 (2007). 1. Concealeddefect Here, Ms. Moon found pet feces and urine underthe new carpet. The pet feces and urine were thus concealed. 2. Sellers' andMs. Burns 's knowledge Mr. Barrwas inside the house during and after the time the old carpet andpad
were removed and the new carpet was installed. Construingthe facts and all reasonable inferences in the light most favorable to Mr. Hauck, a rational trier offact could find by clear and convincing evidence that Mr. Barrknew thatpet feces and urine were underthe
new carpet. Mr. Barrmight have known this in one ofat leastthree ways. First, he may have seen the carpet installers lay the carpet overthe floor without the floors being first
9No. 33614-0-III Moon v. Barr adequately cleaned. Second, he may have seenthe condition ofthe floors and known that the numerous years ofpet urine and feces required the floorboards to be removed and replaced to adequately remedy the condition. Third, he may have smelledthe odor after the new carpet was installed and have known the source ofthe smell was animal feces and urine still underthe new carpet. Although Mr. Barr denies he ever smelled animal feces orurine, this is a fact peculiarly within his knowledge, and cross-examination should be allowed so ajury can determine the credibility ofhis denial. SeeArnoldv. Saberhagen Holdings, Inc., 157 Wn. App. 649, 661-62, 240 PJd 162 (2010); Rileyv. Andres, 107 Wn. App. 391, 395, 27 P.3d 618 (2001). Ms. Bums and Soleil argue they have no liability because Ms. Bums had no knowledge ofthe animal feces and urine underthe carpet. We agree there is no direct evidence that Ms. Bumsknew ofthe animal feces and urine. But we disagree that there is no circumstantial evidence. Circumstantial evidence may support a finding ofdirect knowledge. Waite v. Whatcom County, 54 Wn. App. 682, 687, 775 P.2d 967 (1989). Construing the evidence and all reasonable inferences in the light most favorable to Mr. Hauck: (1) Ms. Bums described the house as "trashed," evidencing that she saw it early, before her father had new carpet installed; (2) the years ofexcessive animal feces and urine throughout the house would have produced a discemable smell, giving her knowledge thatpets had defecated and urinated on the floors and the old carpet; and (3) as evidenced by her consistent and heavy use ofair fresheners, she knew the floorboards were not sufficiently cleaned priorto installation ofthe new carpet.
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Ms. Bums, similarto her father, denies ever smelling animal feces and urine. But
a trier offact is not required to believeMs. Bums, who mayhave seen and smelledthe house when it was in a trashed condition. Courts are reluctantto grant summary judgmentwhen material facts are particularly within the knowledge ofthe moving party. Arnold, 157 Wn. App. at 661-62; Riley, 107 Wn. App. at 395. Here, there is circumstantial evidence Ms. Bumsknew the floorboards were not adequately cleaned of animal feces and urine priorto being concealedbythe new carpet. Although she disputes this knowledge, a trier offact should have the opportunity to considerher denial under cross-examination to determine whether it believes her denial orthe contradictory circumstantial evidence. 3. Dangerous topurchaser's health Mr. Hauck did notpurchasethe house for his own use-hepurchased it for his daughter's use. Ms. Moon made clear to Ms. Bumsthat she was the intended occupant ofthe house. The defendants do not assert we should limitthis elementto Mr. Hauck's health. Because Ms. Bumsknew Ms. Moon would be living in the house, we extend our inquiry to whether the defect is dangerous toMs. Moon's health. Mr. Hauck, through an industrial hygienist, presented evidence that would allow a rational trier offact to find by clear and convincing evidence thatthe presence ofold animal feces and urine likely cause conditions that wouldbe dangerous to a person's health.

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4. Defectnotknown topurchaser The defect was notthe smell. A smell is not dangerous to a person's health. The defect, instead, was the old feces and urine underthe carpets. There is no evidence that Mr. Hauck orhis daughterknew, before Mr. Hauckpurchasedthe house, thatthere were old animal feces and urine underthe new carpets. 5. Defectnotdisclosedby careful, reasonable inspection Once a buyer discovers evidence ofa defect, the buyeris onnotice and has a duty to make further inquiries. Douglas v. Visser, 173 Wn. App. 823, 832, 295 P.3d 800 (2013). Here, the home inspector smelled animal feces and urine, and he disclosed this to Ms. Moon. Notice to Ms. Moon was notice to Mr. Hauck. The evidence is undisputed that Ms. Moon was her father's agent for purposes of purchasing the house. She acted as his agent because the house was intended for heruse, her father had difficulty hearing onthe telephone, and her father's telephone reception
was poor. The law required Mr. Hauck, directly orthrough his daughter, to make further inquiries aboutthe animal smell. The question presented here is whetherMs. Moon's discussion with Ms. Bums concerning the inspectionreport failed, as a matter oflaw, to fulfill this duty. Summary judgmentis only proper ifthe question can be answered as a matter oflaw. To answer this question, wetumto cases that have discussed this duty to inquire. InAlejandre, the home buyers had the septic systempumpedbefore they purchased the house. Alejandre, 159 Wn.2d at 679. The septic company employee who
12No. 33614-0-III Moon v. Barr pumped the tank noted on the bill thathe was unable to inspectthe backbaffle, and added there was "'[ n]o obvious malfunction ofthe system at time ofwork done.'" Id. (alteration in original). Afterthe purchase, the drainfield failed. Id. at 680. The failure
was due to the back baffle missing, thus allowing sludge to enterthe drainfield. Id. The buyers brought suit, alleging negligent misrepresentation and fraudulent concealment. Id. The trial court granted the seller's motion to dismiss at the end ofthe buyers' case. Id. The Supreme Court affirmed the dismissal ofthe buyers' fraudulent concealment claim. Id. at 691. The Supreme Court noted thattrial testimony established an inspection ofthe back baffle would have been simple, and a careful examination would have led to discovery ofthe missing baffle. Id. at 690. Alejandre thus requires a house purchaserto make areasonable inspection. In Dalarna, an apartment building had chronic water leaks. PugetSoundServ. Corp. v. DalarnaMgmt. Corp., 51 Wn. App. 209,210, 752 P.2d 1353 (1988). Because ofthese leaks, the owner decided to sell the building. Id. at 211. The seller had several conversations with the buyer, but never discussed defects or maintenance problems. Id. The buyerhad the building inspected. Id. The inspection revealed stains, cracked plaster, and loose tiles. Id. The report stated, "'These leaks are not serious but should be controlled by additional caulking outside and repainting and/orreplastering inside.'" Id The buyerpurchased the building without making any further inquiries. Id. at 212. After spending $118,000 attemptingto fix the leaks, the buyer sued for constructive fraud, alleging thatthe seller failed to disclose "'substantial, chronic, and
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unresolved water leakage problems.'" Id. The buyer agreedthat it discovered evidence ofwater leaks, but argued the true defect was the extreme, chronic nature ofthe leaks. Id. at 214. The buyer characterized the extent ofthe problem as a separate defect. Id. The Dalarna court heldthat when "an actual inspection demonstrates some evidence of waterpenetration, the buyer must make inquiries ofthe seller." Id. at 215. The court reasoned that the buyer knew there was a defect, but did not inquire aboutthe defect or establish that inquiries would have been fruitless. Id. The court further reasoned that the extent ofthe damage itselfwas not a separate defect, and it was no defense thatthe defect
was worse than the buyer anticipated. Id. at 214-15. Dalarna thus requires a buyerwith notice ofa defect to make some inquiry ofthe seller concerning the defect. In Douglas, the buyers learnedthrough their home inspector ofan area ofwood rot and decay nearthe roofline. Douglas, 173 Wn. App. at 826. The home buyers failed to make any inquiries ofthe seller concerningpossible wood rot. Id. Afterthe purchase, the buyers learned thatthe wood rot was much more extensive. Id. at 827. The trial court heard the evidence and entered a verdict in favor ofthe buyers. Id. at 829. In reversing the trial court, we noted: The Douglases
... were on notice ofthe defect and had a duty to make further inquiries. The Douglases argue that "they had no ideathat 50 to 70% ofthe sill plate andrimjoistwere destroyed" and thatthe area ofrot that [their inspector] discovered was not unusual. That, however, is the precise argument we rejected inDalarna. Once [buyers] discover[] evidence ofa defect, they are on notice and have a duty to make further inquiries. They cannot succeedwhen the extent ofthe defect is greaterthan anticipated, even when it is magnitudes greater.

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Id. at 832. Douglas thus requires a buyer with notice ofa defectto make some inquiry of the seller concerning the defect. This case is dissimilarto Dalarna andDouglas. There, the buyers discovered evidence ofdefects and failed to make any inquiry. Here, Ms. Moon discussed with Ms. Bumsthe urine smell the inspector noticed and recapped the discussions she hadwiththe inspector. Because Ms. Bums was the Barrs' agent, and did not permitMr. Hauck orMs. Moonto talk directly with them, inquiries made to her were inquiries made to the Barrs. The defendants imply that Ms. Moon was requiredto pointedly ask Ms. Bumsto disclose the location ofthe smell. Butthe defendants cite no case that requires such an inquiry. Rather, the law requires the buyer to make further inquiry concerning what he or she knows. Here, Ms. Moon learned thatthere was an animal smell emanating from somewhere. She discussed what she knew with Ms. Bums. By discussing what she knew with Ms. Bums, Ms. Bums was requiredto disclose her knowledge ofthe defect if she knew, orto discuss Ms. Moon's comments with 

### Mr. Barr so he could disclose his knowledge ofthe defect. 

### It is the seller's knowledge that a buyer is unaware ofa concealed material defect that gives rise to the seller's duty to speak. Alejandre, 159 Wn.2d at 689. This case is also dissimilartoAlejandre. There, the buyers did notconduct a careful, reasonable inspection. Here, Mr. Hauckhired a professional inspector. Eventhe professional inspector failed to find animal feces and urine underthe carpet. Whether a careful, reasonable inspection requires a potential buyerto pull up newly installed carpet
15No. 33614-0-III Moon v. Barr

to look for animal feces and urine is questionable, and surely cannotbe answered as a matter oflaw againstthe buyer. Here, a rational trier offact could find by clear and convincing evidence that Mr. Hauck, through Ms. Moon, conducted a careful and reasonable inspection. B. NEGLIGENT MISREPRESENTATION CLAIM AGAINST MS. BURNS AND SOLEIL Mr. Hauck argues the trial court erred when it dismissed his negligent misrepresentation claim against Ms. Bums and Soleil. 1 More particularly, he argues Ms. Bums failed to uphold her statutory duties under RCW 18.86.030(1) and chapter 64.06 RCW. RCW 18.86.030(1) defines duties owedby a real estate broker. A common law tort cause ofaction is the vehicle through which a real estate buyermay recover damages against an agent or a broker. Jackowski v. Borchelt, 174 Wn.2d 720, 735, 278 P.3d 1100 (2012). RCW 18.86.030(1) clarifies that the broker's duties are owed "to all parties to whom the brokerrenders real estate brokerage services." Here, neither Ms. Burns nor Soleil rendered real estate brokerage services to Mr. Hauck. Mr. Hauckhired his own real estate agent. Thus, RCW 18.86.030(1) does not support Mr. Hauck's cause ofaction against Ms. Burns or Soleil. Chapter 64.06 RCW sets forth various required seller disclosures pertaining to different types ofreal estate sales. That chapter also provides buyers with limited rights

1Mr. Hauck impliedly concedes the trial court correctly appliedthe economic loss rule when it dismissed his negligent misrepresentation claim againstthe Barrs. His concession is correct. SeeAlejandre, 159 Wn.2d at 689. 16No. 33614-0-III Moon v. Barr
and remedies. ButbecauseMr. Hauck did not argue to the trial court that Ms. Bums and Soleil were liable to him under chapter 64.06 RCW, we do not considerhis new argument on appeal. See RAP 2.5(a). We conclude the trial court did not errwhen it dismissed Mr. Hauck's negligent misrepresentations claims against Ms. Bums and Soleil. C. CPACLAIMS Mr. Hauck argues the trial court erred when it dismissed his CPA claim against the Barrs, Ms. Bums, and Soleil. "Aviolation ofthe [CPA] exists whenthere is (1) an unfair
or deceptive act orpractice (2) occurring in trade orcommerce (3) with a public interest impact (4) thatproximately causes (5) injury to a plaintiffin his orherbusiness or property." Douglas, 173 Wn. App. at 834. 1. CPA liability against the Barrs The Barrs argue Mr. Hauck cannot establish there was an unfair or deceptive act
orpractice. We disagree. We must considerthe evidence and all reasonable inferences most favorably to Mr. Hauck. Construing the evidence in this manner, Mr. Barrknew the floorboards were badly damaged by animal feces and urine and concealedthe damage with new carpets. The Barrs appearto argue, alternatively, that nothing they didcausedMr. Hauck's harm. They argue Mr. Hauck's failure to inquire and failure to do a careful, reasonable

17No. 33614-0-III Moon v. Barr inspection were the causes ofMr. Hauck's damages. But as we discussed previously, such arguments raise genuine issues ofmaterial fact best leftto the trier offact.2 2. CPA liability againstMs. Burns andSoleil
a. Unfair or deceptive act orpractice Ms. Bums and Soleil first argue they did not commit any unfair or deceptive act or practice because Ms. Bumshad no independentknowledge ofthe animal feces and urine under the carpet. We have already addressed this argument and have determined that a trier offact could find she gained such knowledge when she first visited the house and
was later aware ofthe unabated smell. Again, a trier offact should weigh her denial under cross-examination. b. Public interest Ms. Bums and Soleil next argue the public interest element ofMr. Hauck's CPA claim is not met. We disagree. In Svendsen v. Stock, 143 Wn.2d 546, 23 P.3d 455 (2001), a real estate agent assisting the seller ofresidential property had actual knowledge that theproperty flooded whenever a nearby storm drain became cloggedwith debris during heavy rains. Id. at 552. The real estate agent's knowledge arose independently ofher assisting the seller completing the seller disclosure statement. Id. When the seller and agent discussed how

2 The Barrs, both at summaryjudgment and on appeal, challenged Mr. Hauck's CPA claim only on the basis thathe could not establish an unfair or deceptive act or practice. Although we reverse the dismissal ofMr. Hauck's CPA claim againstthe Barrs, the reversal is limited to the sole issue raised by the Barrs. 18No. 33614-0-III 

### Moon v. 

### Barr

to complete the disclosure statement, the agent advised the seller not to disclose the problem because the cause-debris in the storm drain-hadbeen (temporarily) fixed. Id. at 551. The agent added, there was no obligationto disclose a history offlooding because it "'is not happening right now.' " Id. The sellertherefore did not disclose the flooding problem. Id. After closing, the buyers suffered substantial property damage as
aresult ofwater flowing on theirproperty when the nearby storm drain became clogged. Id. Ajuryreturned averdict in favor ofthe buyers and againstthe real estate agent and her employer for fraudulent concealment and violation ofthe CPA. Id. at 552. The jury apportioned 95 percent ofthe fault to the real estate agent and her employer, and the other 5percent offault to the seller. Id. We partially affirmed, determining that substantial evidence supported fraudulent concealment. Id. We reversedthe CPA claim. Id. In reversing, we noted that RCW 64.06.060's language explicitly stated "'the practices covered by this chapter are not matters vitally affecting the public interest for the purpose ofapplying the [CPA]."' Id. at 553-54 (quoting RCW 64.06.060). The Svendsen court grantedthe buyer's petition for review andreversed our dismissal ofthe CPA claim. Id. at 552, 560. In reversing, the Svendsen courtnotedthree things. First, RCW 64.06.070 did not extinguish a buyer's common law or statutory
cause ofaction. Id. at 556. Second, Washington courts had, priorto the enactment of chapter 64.06 RCW, repeatedly held thatreal estate agents are subjectto CPA liability for not disclosing known material defects. Id. And third, the real estate agent was liable
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underthe CPA because she had knowledge ofthe flooding problem independent ofher assisting the seller in completing the disclosure statement. Id. at 557. In analyzing the public interestrequirement ofa CPA claim, the Svendsen court noted the four factors that a trier offact must weigh: (1) [W]hetherthe acts were committed in the course ofdefendant's business; (2) whetherthe defendants advertised to the public; (3) whether the defendant actively solicitedthe plaintiff, indicating otherpotential solicitation ofothers; and (4) whetherthe parties occupied unequal bargaining positions. Id. at 559. The court explainedthat none ofthe four factors are dispositive nor is it necessary that all four factors be present. Id. The court noted that the real estate agent's concealment was within the course ofherbusiness, and her employer advertised to the public, but there was no unequal bargainingposition. Id. The Svendsen court held that such evidence was sufficientto establish the public interestrequirement ofthe CPA. Id. We similarly hold that the facts presented by Mr. Hauck are sufficientto satisfy the public interest requirement ofhis CPA claim. Construing the evidence and all reasonable inferences in his favor, Ms. Bums's concealmentwas within the course ofher business, and Soleil advertised the property to the public when it listed the property for sale. Such solicitationresulted in at least 20 potential purchasers, including Mr. Hauck, learning ofthe property. We conclude the trial courterred in summarily dismissing Mr. Hauck's CPA claim against Ms. Bums and Soleil.

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D. BREACHOF CONTRACT CLAIM Mr. Hauck argues he has shown a genuine issue ofmaterial fact as to each ofhis other claims, and therefore his breach ofcontract claim survives. He fails to explainwhat contract clause the Barrs supposedly breached. We will not consider such a vague argument on appeal. See RAP 10.3(a)(6) (requiring arguments to contain citations to legal authority and references to relevantparts ofthe record); Marin 

### v. King County, 194 Wn. App. 795, 820, 378 P.3d 203 (2016) (findingthat appellant's argument was too vague to permitreview). E. ATTORNEY FEES AND COSTS ON APPEAL The Barrs request attorney fees on appeal pursuant to aprovision in the purchase and sale agreement. The provision provides, "ifBuyer or Seller institutes suit against the other concerning this Agreementthe prevailingparty is entitled to reasonable attorneys' fees and expenses." CP at 54. The prevailing party in a contract action shall receive attorney fees and costs when the contract authorizes such an award. RCW 4.84.330. Subjectto their compliance with RAP 18.l(d), the Barrs are awarded theirreasonable attorney fees. However, the only basis for a fee award is successfully defending against Mr. Hauck's breach ofcontract claim. For this reason, their fee award is limited to those fees reasonably necessary in defeating the contract claim. See Hume v. Am. Disposal Co., 124 Wn.2d 656, 672, 880 P.2d 988 (1994). Ms. Burns and Soleil request attorney fees "pursuantto RAP 18.1 and 18.9." Br. ofResp'ts Soleil Real Estate and Burns at 47. They fail to provide any argument in
21No. 33614-0-III Moon v. Barr support oftheir fee request. We therefore deny theirrequest. See RAP 18.l(b);Stiles v. Kearney, 168 Wn. App. 250,267, 277 P.3d 9 (2012) (single sentence requesting attorney fees, without argument or citation to authority, fails to comply with mandatory requirements ofRAP 18.l(b)). Mr. Hauck requests reasonable attorney fees pursuantto the purchase and sale agreement. We affirm the dismissal ofhis contract claim. We therefore deny his request. Because each party partially prevailed on appeal, we determine no party is entitled to an award ofstatutory costs on appeal. CONCLUSION The trial court erred when it summarily dismissed Mr. Hauck's fraudulent concealment and CPA claims against the defendants. The trial court correctly summarily dismissed Mr. Hauck's breach ofcontract claim against the Barrs and his negligent misrepresentation claim against the defendants. We therefore reverse in part and affirm in part.A majority ofthe panel has determinedthis opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.

WE CONCUR:

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