INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON PAUL N. and DEBORAH R. HAGMAN, husband and wife, and RYAN P. HAGMAN, as his separate estate, Respondents,

WARREN C. WILLIAMS; JOHN L. SCOTT, INC.; 10820 EVERGREEN LLC, d/b/a MICHAEL HAGAN ESCROW; ROBERT T. MAPLE, Defendants,
and HMC CAPITAL INVESTMENTS, INC. d/b/a JOHN L. SCOTT SNOHOMISH; BARBARA A. SHELTON; CHRISTOPHER 

### GOUGH; JOHN or JANE DOE, designated brokerof JOHN L. SCOTT SNOHOMISH; Appellants. No. 71156-3-1 DIVISION ONE r—3 .- ->..

UNPUBLISHED OPINION FILED: June 15, 2015



### Becker, J. —The prevailing party under a contractual fee-shifting 

## provision is generallyentitledto an award ofattorneyfees only ifthe underlying action involves claims "on the contract." Because Barbara Shelton failed to 

### demonstrate that the Hagmans' tort claims for fraud and negligent 

## misrepresentationwere based onthe parties' contract, thetrial courtdid noterrin refusing toaward Shelton attorneyfees as theprevailing partyfollowing a 

## voluntarydismissal underCR41. Norhas Shelton demonstratedthatthetrial courtabused its discretion in denying CR 11 sanctions. We affirm.No. 71156-3-1/2

FACTS For purposes of this appeal, the relevantfacts are not disputed. In2010, Paul, Deborah, and Ryan Hagman (Hagman) purchased an unimproved parcel of property in Skagit County from Warren Williams. Barbara Shelton, the managing real estate broker of HMC Capital Investments, Inc., d/b/a John L. Scott Snohomish, represented the sellerWilliams. Her husband, Christopher Gough, a real estate broker inthe same office, represented Hagman. As part ofthe transaction, Gough, on behalfofJohn L. Scott, and Hagman executed a Buyer's Agency Agreement. After the purchase, Hagman learned that he would not be able to obtain a 

### building permit forthe property because itlacked access to an adequate water 

### supply. On April 25, 2012, Hagman filed this action against the seller, the real estate brokers, and others associated with the transaction, seeking rescission of 

### the purchase and sale agreement and damages. Among otherthings, Hagman alleged that the defendants 

### actually knew (had actual knowledge) or had reason to knowthat the Lot 2 did not have a well to use or an adequate supply ofwater, 

### and intentionally, recklessly, and/or negligently concealed this information from Plaintiffs and fraudulently induced the sale. As to the real estate brokers, HMC, Shelton, and Gough (collectively Shelton), 

### Hagman's complaint alleged claims of fraud, negligent misrepresentation, and violation ofthe Consumer Protection Act, chapter 19.86 RCW.No. 71156-3-1/3

On November 1, 2012, Shelton moved for summaryjudgment. On December 3, 2012, the trial court concluded that genuine issues ofmaterial fact remained and denied the motion. The court also denied Shelton's motion for 

### attorney fees and CR 11 sanctions. 

### On July30, 2013, Hagman moved for a voluntary dismissal ofall his claims under CR 41(a)(1)(B). He explained that discovery revealed that his 

### preferred remedy ofrescission was notpossible. Hagman further asserted that because there were no contract claims and that all claims against Shelton arose 

### out of statutoryand common-law duties, the dismissal should bewithoutan award ofcosts or attorney fees. 

### Shelton did notoppose dismissal but maintained that she was the 

### prevailing party undertheattorneyfee provision in the Buyer's Agency 

### Agreementandtherefore entitled to anaward ofattorneyfees andcosts. Shelton also asserted that she was entitled to attorney fees under CR 11 

### becauseHagman was"unabletoshowthatShelton had done anything wrong." Following oral argument onOctober 18, 2013, thetrial courtgranted 

### Hagman's motion and dismissed the casewithoutprejudice. The courtdeclined toaward attorneyfees butruled thatattorneyfees and costswould beaddressed should Hagman "reinstitute anyclaims." Shelton appeals. 

### Hagman initiallycontends thatthetrial court's orderis notappealable. But Shelton has not soughtreview ofthe ordergranting voluntary dismissal withoutNo. 71156-3-1/4 

### prejudice. Rather, she challenges the trial court's denial of an attorney fee award. Courts have generally found such decisions appealable as a matterof right. See Allahvariv. Carter Subaru. 78 Wn. App. 518, 521 n.2, 897 P.2d 413 (1995), abrogated on other grounds by Wachovia SBA Lending. Inc. v. Kraft. 165 Wn.2d 481, 200 P.3d 683 (2009). ANALYSIS 

### Shelton contends thatthe trial court erred in failing to award attorney fees under paragraph 11 ofthe Buyer's Agency Agreement, which provided: ATTORNEYS' FEES. Inthe event ofsuit concerning this Agreement, including claims pursuant to the Washington Consumer Protection Act, the prevailing party is entitled to court costs and a reasonable attorney's fee. She argues that because she was the prevailing party underthis provision, the trial court was obligated to award attorney fees. Shelton also contends that the trial court erred in failing to award attorney fees under CR 11. "Whether a party is entitled to attorney fees is an issue of law that we review de novo." Little v. King. 147 Wn. App. 883, 890, 198 P.3d 525 (2008). Shelton relies primarily on Singleton v. Frost. 108 Wn.2d 723, 730, 742 P.2d 

### 1224 (1987), which held thatwhen RCW 4.84.330 applies, "the trial court has the powerto limitan award of attorney's fees to a reasonable sum; however, this power does not extend to allow the complete denial ofattorney's fees where the contract provides for their award."

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Shelton concedes thatthe attorney fee provision inthe Buyer's Agency Agreement authorized an award "to the prevailing party inthe eventthat a lawsuit
was commenced by either party for the enforcement ofthe contract." (Emphasis added.) The prevailing party may recover under such a contractual fee-shifting provision, however, only ifthe opposing party brings a claim "on the contract": that is, only if a party seeks to recover under a specific contractual provision. If a party alleges breach of a duty imposed by an external source, such as a statute or the common law, the party 

### does not bring an action on the contract, even ifthe duty would not exist in the absence of a contractual relationship. Boguch v. LandoverCorp., 153 Wn. App. 595, 615, 224 P.3d 795 (2009) (citing Hemenwav v. Miller. 116 Wn.2d 725, 743, 807 P.2d 863 (1991); Burns v. 

### McClinton. 135 Wn. App. 285, 310-11, 143 P.3d 630 (2006). review denied. 161 

### Wn.2d 1005 (2007); G.W. Constr. Corp. v. ProfIServ. Indus.. Inc.. 70 Wn. App. 360, 366, 853 P.2d 484 (1993). review denied. 123 Wn.2d 1002 (1994)). An action is "'on the contract'" for purposes of a contractual attorney fees 

### provision ifthe action (1) "'arose out of the contract'" and (2) "'ifthe contract is central to the dispute.'" Boguch. 153 Wn. App. at 615 (quoting Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 130, 857 P.2d 1053 (1993)). '"Ifthe tortious 

### breach of a duty, rather than a breach of a contract, gives rise to the cause of action, the claim is notproperly characterized as breach of contract.'" Boguch, 

### 153 Wn. App. at 616 (emphasis added) (quoting Owens v. Harrison. 120 Wn. App. 909, 915, 86 P.3d 1266 (2004)).

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### Inresisting summaryjudgment, Hagman expressly alleged that Shelton
was liable for breaching common law and statutory duties. On appeal, Shelton has not disputed or even addressed Hagman's specific arguments regarding breach ofcommon law and statutory duties. Nor has she made any showing that Hagman's claims offraud and negligent misrepresentation were based on her violation of specific contractual provisions. Under the circumstances, Shelton has not shown that Hagman's claims were "on the contract" or that the trial court erred in failing to award contractual attorney fees for defending against 

### Hagman's tort claims. Cf. Boguch, 153 Wn. App. at 619 (because realtor's


### common law and statutory duty to exercise reasonable care exists regardless of 

### any contractual provision, seller's negligence claims are not "on the contract"). Consequently, Frost does not apply to the facts here. Shelton also contends that the trial court erred in refusing to award 

### attorney fees forHagman's violation of CR 11. CR 11 requires that a party's pleadings, motions, or legal memoranda be grounded in fact, warranted by 

### existing law, and not interposed for any improperpurpose, such as to harass or to cause unnecessary delay or needless increase in the cost oflitigation. CR 11(a); see, e^ Blairv. GIM Corp., 88 Wn. App. 475, 482-83, 945 P.2d 1149 (1997). Because CR 11 sanctions have a potential chilling effect, the trial court should impose sanctions only when it is patently clearthat a claim has absolutely
no chance ofsuccess; the fact that a complaint does not prevail on its merits isNo. 71156-3-1/7



### not enough. Skimming v. Boxer. 119 Wn. App. 748, 755, 82 P.3d 707, review 

### denied, 152Wn.2d 1016 (2004). We reviewthe trial court's decision to deny CR 11 sanctions for an abuse ofdiscretion. Skimming. 119 Wn. App. at 754. Shelton alleges that Hagman's lawsuit was not wellgrounded in fact or warranted by existing law. But Shelton does not address the trial court's denial of her summaryjudgment motion and motion for CR 11 sanctions. Rather, she relies solely on conclusory allegations that she was contractually and statutorily immune from any liabilitywhatsoever. Because Shelton has not supported the alleged error with any meaningful legal argument, references to the arguments before the trial court, or citation to relevant authority, she has failed to demonstrate that the trial court abused its discretion in refusing to impose CR 11 sanctions. Cf. Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court will decline to consider issues unsupported by cogent legal argument and citation to relevant authority). Hagman requests attorney fees for responding to a frivolous appeal. See RAP 18.9. An appeal is frivolous "ifthe appellate court is convinced that the 

### appeal presents no debatable issues upon which reasonable minds could differ and is so lacking in merit that there is no possibility ofreversal." In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929 (1997). We resolve any doubts as to whether an appeal is frivolous inthe appellant's favor. Granville Condo.

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Homeowners Ass'n v. Kuehner, 177 Wn. App. 543, 558, 312 P.3d 702 (2013). Applying this standard, we deny Hagman's request. Affirmed. 

# & cfe(g, \ V

WE CONCUR:

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