### INTHE COURT OF APPEALS OFTHE STATE OFWASHINGTON THE MCNAUGHTON GROUP, LLC, a 

### Washington limitedliabilitycompany, Respondent,

v. HAN ZIN PARK and REGINA KYUNG PARK, husband and wife, and the marital community propertycomprisedthereof, Appellants, WINDERMERE REAL ESTATE COMPANY, aWashington corporation; JULIE MANOLIDES and JOHN DOE MANOLIDES, husband and wife, Third Party Defendants. No. 70064-2- DIVISION ONE UNPUBLISHED OPINION
«8
:» 2b> -n_

FILED: March 31, 2014 

# s 12S

en §^
Appelwick, J. — The Parks appeal the denial of their motion for summary judgment, arguing that their real estate contract with TMG was void for lack of legal description. TMG asserts that the Parks waived this affirmative defense. The Parks also make several evidentiary assignments oferror. We affirm. FACTS In 2004, Han and Regina Park negotiated with The McNaughton Group LLC (TMG) over sale ofthe Parks' property in Edmonds, Washington. That September, the parties drew up a purchase and sale agreement (2004 PSA) with a purchase price of $2,425,000. However, the negotiations ultimatelyfellthrough. 

### Inearly 2005, the parties resumed negotiations for sale ofthe property. Initially, TMG offered the Parks $2,400,000. The Parks counter-offered with $2,425,000, whichNo. 70064-2-1/2


### TMG accepted. The parties executed the new purchase and sale agreement (2005 PSA) on or about February28, 2005. Before closing, however, the parties sparred over the terms of the contract, namely the purchase price. The Parks argued that, contrary to the terms ofthe 2005 PSA, an additional $180,000 was due. The closing date was set for September 11, 2006. Ultimately, however, the Parks did not close on the property. TMG filed suit againstthe Parks for breach ofcontract and filed a lis pendens on the property. The Parks counterclaimed and argued that itwas TMG who breached the 

### contract. The Parks later moved for summaryjudgment, asserting that the 2005 PSA
was void for lack of legal description. The trial court denied their motion, finding that they hadwaived the statute offrauds as a defense. 

### The case proceeded to trial on January 22, 2013. Thejury ultimately found for TMG. The Parks appeal. DISCUSSION I. Motion for Summary Judgment 

### The Parks argue thatthe trial court improperly denied their motion for summary judgment. This courtreviews a trialcourt's summaryjudgmentorderde novo. Korslund
v. DvnCorp Tri-Cities Servs.. Inc.. 156Wn.2d 168, 177, 125 P.3d 119 (2005). Summary 

### judgmentis properifthere are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. jd_. This court construes the facts and reasonable inferencestherefrom inthe lightmostfavorableto the nonmoving party, hiNo. 70064-2-1/3

A. Waiver ofStatute ofFrauds Defense The Parks first contend that the trial court erred in finding that they waived the statute offrauds defense. CR 8(c) establishes that the statute offrauds is a defense that must be affirmatively set forth by a party. Generally, affirmative defenses are waived unless (1) affirmatively pleaded; (2) asserted in a CR 12(b) motion; or (3) tried with the parties' express or implied consent. Henderson v. Tyrrell. 80 Wn. App. 592, 624, 910 P.2d 522 (1996). The policy behind this rule is to avoid surprise. Id, Where 

### that policy is not a concern, and the failure to affirmatively plead a defense does not 

### affectthe substantial rights oftheparties, wewill considernoncompliance harmless, jd. In Henderson, the trial court refused to instruct the jury on nonparty fault, an affirmative defense thatthe defendantfailed to raise inany responsive pleading, jd. at 

### 621-22. The appellate courtfound thatthis was not an abuse ofdiscretion. \± at 625. It reasoned that the defendant was aware ofthe issue and did not raise it during the 

### many months before trial. ]d. To allow him to raise the defense right before trial, the courtstated, would require the partiesto engage insubstantial new discovery. ]d. 

### By contrast, in Bickford v. City of Seattle, this court found that the trial court abused its discretion in ruling that the defendant failed to timely raise its affirmative defense of setoff. 104 Wn. App. 809, 813, 17 P.3d 1240 (2001). There, the defendant 

### did notexpresslyplead the defense in itsanswer, jd. at 814. But, this courtreasoned, the parties had impliedly consented to trythe issue by discussing setoff with the court 

### and agreeing abouthow it would be presented and the figures that would be used. j<±No. 70064-2-1/4
Here, the courtmadethefollowing findings: 1. This case was filed on September28, 2006; 2. The Parks never mentioned or ple[a]d[ed] the Statute of Frauds in theiranswer, counterclaims, or third partyclaims; 3. The discovery cut-offdate was May 21, 2012, 4. This motion was noted for May 30, 2012, a date afterthe discovery cut-off; and 5. The Parks raised the Statute of Frauds as a defense for the first time in this motion. To permit the Parks to raise the Statute of Frauds at this late date would be unduly prejudicial and unfairto Plaintiff. The Parks argue that these findings ignored their pleadings and that they had openly contested the contract. It is true that the Parks challenged the 2005 PSA in their answer to TMG's 

### complaint, but their arguments involved the purchase price. There was no mention of the statute offrauds or concern about the legal description ofthe property. Norwas there mention ofthose issues inany oftheirmany subsequentpleadings. Like the defendant in Henderson, the Parks failed to raise their affirmative 

### defense in their responsive pleadings. They were able to raise the statute offrauds 

### defense earlier, having had access to the 2005 PSA since the beginning of the lawsuit. But, for six years, the Parks did not raise an issue about the legal description of the 

### property. And, when they did raise the issue, itwas not until discovery had concluded. There is no evidence that, as in Bickford. the parties had consented to try the issue. The policyconcerns behindthe affirmative pleading rulethus applyhere. 

### The trial court did not err in finding that the Parks waived the statute offrauds defense.No. 70064-2-1/5

B. Statute ofFrauds: Adequate Legal Description 

### Even if the statute offrauds defense had not been waived, denial ofsummary judgment motion was proper. Under the statute offrauds, a contract for the sale or 

### conveyance of real property must include a legal description ofthe property. Pardee v. 

### Jolly. 163 Wn.2d 558, 566-67, 182 P.3d 967 (2008). An inadequate legal description renders a contractvoid. Maier v. Giske. 154 Wn. App. 6, 15, 223 P.3d 1265 (2010). A valid legal description for platted property must include the lot number, block number, addition, city, county, and state. Martin v. Seiqel. 35 Wn.2d 223, 229, 212 P.2d 107 (1949). The description may appearinthe contract itself, orthe contractmay reference another instrument that contains a sufficient description. Bioelow v. Mood. 56 Wn.2d 340, 341, 353 P.2d 429 (1960). Here, the legal description reads: The real property ("Property") located at 7704 Olympic View Dr., 18314 Olympic 

### Vw Dr., 18408 79th AV W, 18325 80th AV W, Edmonds Wa, ("homes and land"), Tax Parcel ID #'s 00370800301000, 00370800100900, 00370800101100, 00370800101200 and Tract 106, Edmonds SeaView Tracts as perplat recorded involume 3 ofplats page76, records ofSnohomish County, 00434600010601. The description includes the city, county, and statewherethe property sits. TMG argues that this legal description is sufficient and cites to Bingham v. Sherfev. where the court approved a legal description that identified a property using its tax parcel number. 38 Wn.2d 886, 889, 234 P.2d 489 (1951). The Parks counterthat Bingham does not apply, because it establishes requirements for only unplatted property. The Parks are correct: it is not Bingham, but Martin that establishes legal 

### description requirements for platted property. See 35 Wn.2d at 229. The legalNo. 70064-2-1/6 

### description here meets three of Martin's requirements—city, county, and state—but does not include the property's lot number, block number, and addition. This is an insufficientlegal description on thefourcorners ofthe document. However, TMG also argues that the 2005 PSA referred to another instrument 

### with a sufficient description. If parties to a contract clearly and unequivocally incorporate by reference anotherdocument, thatdocumentbecomes part ofthe parties' contract. Satomi Owners Ass'n v. Satomi. LLC. 167 Wn.2d 781, 801, 225 P.3d 213 (2009). This allows the parties to incorporate terms by reference to a separate agreement, including an agreementthat is not physically attached. Knight v. Am. Nat'l Bank. 52 Wn. App. 1, 4-6, 756 P.2d 757 (1988). Itmust be clearthatthe parties knew of and assented to the incorporated terms. W. Wash. Corp. of Seventh-DayAdventists
v. Ferrellqas. Inc.. 102 Wn. App. 488, 494-95, 7 P.3d 861 (2000). The provisions referenced musthave a reasonably clearand ascertainable meaning. ]o\ at494. At issue here are two documents: the 2005 PSA and the 2004 PSA. The 2005 

### PSA has a typed date of February 18, 2005. TMG signed the 2005 PSA on February 19, 2005, and the Parks signed it on February 20, 2005. The 2005 PSA states that it includes the following: "Addendum," "Promissory Note" and "counter addendum + 3 pages of prior addendum." Attached to the PSA are the following: a four-page document entitled "Addendum to Purchase and Sale Agreement"; a promissory note; a document called "Addendum B to Purchase and Sale Agreement Date 2/19/05"; and three additional pages ofterms.No. 70064-2-1/7


### Addendum Bcontains a handwritten note designating itas a "counteroffer." The addendum states that: 

### Inthe event, ifthere arise any dispute overthe scope ofthe applicable clause(s) on Specificterms ofAddendum 1 through 14, (dated 2/19/05)., [sic]Precious Tsicl agreementexecuted on September8. 2004. page 1 through 13, supercedes Tsicl 

### and replaces any provision on the topics contained in purchase and sale agreementproposed and executed on February 19, 2005. (Emphasis added.) 

### The 2004 PSA has a typed date ofSeptember 2, 2004. TMG signed the 2004 

### PSA on September2, 2004, and the Parks signed it on September 8, 2004. The 2004 PSA includes an addendum listingthefull legal description ofthe properties. TMG argues that, by virtue ofAddendum B,the 2005 PSA incorporates the 2004 

### PSA. The language ofAddendum B clearly and unequivocally incorporates a previous agreement executed on September 8, 2004. The parties signed Addendum B, demonstrating that they knew of and assented to its terms. The Parks contend, however, that a September 8, 2004, agreement does not exist. While September 8 does not correspond with the typed date of the 2004 PSA, it does correspond to the date upon which the Parks signed the PSA. The record does not contain any other document with that date, nor do the Parks allege that Addendum B refers to another particular document. The agreement referenced thus had a reasonably clear and ascertainable meaning. The Parks further contend thatAddendum B is nota lawful partofthe 2005 PSA. This is so, they maintain, because the 2005 PSA does not on its face refer to an "Addendum B." The Parks are correct that the 2005 PSA does not specifically refer to Addendum B, but to a "counter addendum." But, Addendum B is identified as aNo. 70064-2-1/8


### "counter offer." Itwas stamped and initialed by the parties on February 28, 2005, the
same date that the 2005 PSA was stamped and initialed. And, the documents thatthe 

### 2005 PSA lists as attachments correspond in number and type to the documents attached to the executed 2005 PSA. This includes Addendum B. Intheir briefs, the Parks do not argue that "counter addendum" refers to another document in particular. Before trial, they asserted that it referred to a document increasing the purchase price. TMG disputed this, noting thatthe document bore only the Parks' initials and that TMG never saw the document until the closing date had passed. The Parks also argue that Addendum B refers to a February 19, 2005, agreementthatdoes notexist. Again, this date does notcorrespond withthetyped date of the 2005 PSA, but with the date upon which the 2005 PSA was signed by TMG. Neitherthe record northe Parks provide anotherdocumentto which Addendum B might refer. This is insufficient to demonstrate that the 2005 PSA did not include Addendum B. 

### Thetrialcourtproperly concluded as a matterof lawthatthe 2005 PSA complied with the statute of frauds. Therefore, the trial court did not abuse its discretion in denying the Parks' motion for summaryjudgment.

II. Former Counsel Testimony 

### The Parks argue that the trial courtimproperly compelled theirformer attorney,1 Gregory Home, to testify inresponse to questions fromthejury. They contend that the
1 Home represented the Parks during the 2004 negotiations, but not during the 2005 transaction. Home becametheirattorney again afterthe 2005 transaction closing
8No. 70064-2-1/9

court exacerbated this error by refusing to admit evidence that the Parks offered regarding one ofthe questions. This court reviews the trial court's decision to admit or exclude evidence for an abuse of discretion. State v. Gresham. 173 Wn.2d 405, 419, 269 P.3d 207 (2012). On direct examination, Han Park testified about advice that Home gave them about the purchase price of the property. Park also testified that TMG paid Home to represent the Parks. As a result of this testimony, the jury sought to ask Home two questions. Despite the Parks' objections regarding the protections ofthe attorney-client privilege, the court ordered Home to testify as to the two limited questions. The questions are as follows: Did you as an attorney provide a letter to Mr. Park stating a legal opinion that the $180,000 was in addition to the purchase price and was 

### indeed partofthe contract?And did this event, this opinion, occurin2004, 2005 or 2006?
[M]r. Park testified that TMG, the McNaughton Group, retained you 

### as their attorney, as the Parks [sic] attorney, on his behalf against his wishes. Did that occur? 

### Home responded to thefirstquestion by saying, "I don't recall." He responded, "No" to the second question. The Parks then offered as an exhibitan e-mail containing Home's opinions about 

### the purchase price ofthe property. TMG objected, arguing that the e-mail was sent



### failed. He continued to represent the Parks through the early phases of the TMG lawsuit.No. 70064-2-1/10 postclosing and was therefore irrelevant.2 The trial court excluded the evidence on relevancygrounds. A. Home's Testimony 

### The Parks argue thatthe trialcourterred in requiring Home to testify. They rely on RCW 5.60.060(2)(a), which prohibits an attorney from testifying about professional advice given to a client without the client's consent. But, a client waives the privilegeas to an entire confidential communication by testifying about part ofthat communication. Statev. Vandenberq. 19 Wn. App. 182, 186, 575 P.2d 254 (1978). Here, Han Park testified on direct examination that Home advised him that the Parks were entitled to an increased purchase price and that TMG had paid Home to represent the Parks. In doing so, he waived privilege as to Home's testimony on the
same subjects. B. Exclusion ofE-mail The Parks argue thatthe trial courtfurther erred inexcluding as irrelevantthe e

### mail containing Home's opinion. Relevant evidence is that having any tendency to prove or disprove a factthatis material to the determination ofthe action. ER401. The court concluded that, in order for the e-mail to be relevant, the Parks would have needed to rely on Home's opinion in deciding not to close on September 11—the date of their alleged breach. Because the e-mail was dated September 13, the court reasoned, itwas not relevant to the Parks' decision. The Parks' motive for refusing to close on the salewas indispute, and theirbreach was the central issue inthe case. An


### 2 While the e-mail is not provided in the record, based on the exhibit list it appears to bedated September 13, 2006, two days afterthe closing date.
10No. 70064-2-1/11


### e-mail sent after they refused to close would not necessarily prove or disprove the Parks' motives or be relevant to breach. Without the e-mail in the record, the panel
cannot review it further. Thetrial courtdid not abuse its discretion inadmitting Home's testimony or excluding the e-mail containing his opinion.

III. Evidence ofPrevious Real Estate Transactions 

### The Parks argue that the trial court erred in admitting two pieces ofevidence 

### regarding theirpriorrealestatetransactions. Atrial court has broaddiscretion in ruling on evidentiary matters and will not be overturned absent manifest abuse ofdiscretion. Cox v. Spanqler. 141 Wn. 2d 431, 439, 5 P.3d 1265, 22 P.3d 791 (2000). A. Purchase and Sale Agreement The Parks first contest the admission of a contract involving their Edmonds 

### property, which the Parks attempted to sell toMichelle Construction, Inc. in 2001. The Parks characterize the contract as evidence of "other acts" or "character traits" and contend that itwas inadmissible underER404(b). 

### However, TMG offered the contractforimpeachmentpurposes. ER 607 governs 

### the use ofimpeachmentevidence andprovidesthat thecredibility of awitness maybe 

### attacked by any party. If a plaintiff's testimony places his credibility at issue, the defendant may admit evidence to impeach the plaintiff's testimony. See, e.g.. Tamburellov. Deo'tof Labor &Indus.. 14 Wn. App. 827, 828, 545 P.2d 570 (1976). 

### Here, Han Parktestified that hedid not have a priorsales contractwith Michelle Construction. The trial court found that, Park thus opened the door for TMG to 

### introduce the 2001 contract as impeachment evidence. The court also found that the

11No. 70064-2-1/12 

### probative value outweighed the prejudicial effect. The trial court did not abuse its discretion inadmitting this evidence. B. Appellate Opinion 

### The Parks further challengethe admission of an appellate opiniondemonstrating that the Parks had tried to purchase a piece ofproperty in 1979, but thatthe deal had fallen through because of a dispute overcontractterms. The Parks argue thatthis too

was inadmissible evidence of"otheracts" or "charactertraits" under ER 404. 

### Although evidence of prior acts are inadmissible to prove propensity on a particular occasion, they may be admissible for other purposes, including proof of motive, intent, modus operandi, or a common scheme orplan. Saldivarv. Momah. 145 Wn. App. 365, 395, 186 P.3d 1117 (2008). For example, a plaintiff may establish a
common plan or scheme using evidence that a defendant committed similar acts of misconductagainst similarvictims undersimilarcircumstances, jd. at 395. In Saldivar. the trial court excluded evidence that the defendants, two brothers, used their similar appearances to impersonate each other in their professional lives. See id. at 394. The appellate court found that the exclusion was improper, jd. at 396. The court acknowledged that the proffered testimony would prove that the past impersonation took place at a different location during a different time period, jd. However, itfound thatthe evidence's importancewas thefactthatthe brothers engaged 

### in professional impersonation—not when or where they did, or what harm ultimately resulted, jd. Here, TMG offered the appellate opinion as evidence of the Parks' common 

### scheme or plan. TMG's theory was that, in both the present case and in 1979, the

12No. 70064-2-1/13 

### Parks attempted to enforce a contract term to which the other party had not initially agreed. Ultimately, the trial court admitted the opinion as evidence of a common scheme or plan underER 404(b). Like the evidence in Saldivar. the 1979 transaction is removed in time from the present case. See 145 Wn. App. at 396. But, it demonstrates that the Parks had 

### engaged in similar behavior with a similar victim, suggesting that they had a common scheme or plan in approaching real estate deals with developers. The trial court also 

### determined thatthe 1979 transaction had probative value thatoutweighed its prejudicial effect. This evidencewas properly admitted.3 The trial court did not abuse its discretion in admitting evidence of the Parks' previous real estate transactions. IV. Factual Issues Conclusively Determined The Parks contend that the trial court erroneously instructed the jury that three 

### factual issueswereconclusivelydetermined.4 A properjury instruction informs thejury about the applicable law and does not mislead thejury. State v. Bennett. 161 Wn.2d 303, 307, 165 P.3d 1241 (2007). Where
no disputed facts exist about an issue, the court may decide that issue as a matter of


### 3Even if the trial court had erred in admitting this evidence, the error would be harmless. An error in admitting evidence of bad acts is harmless ifthe improperly admitted evidence is of little significance in light ofthe evidence as a whole. State v. Fuller. 169 Wn. App. 797, 831, 282 P.3d 126 (2012), review denied. 176 Wn.2d 1006, 297 P.3d 68 (2013). Here, the appellate opinion was only one of many pieces of evidence that TMG offered to support its allegations of breach of contract. Based on this otherevidence, thejury could have reasonably concluded thatthe Parks breached the contract, even withoutevidence ofthe 1979 transaction. 4The Parks do not offer legal authority for their assignment of error. We infer 

### thatthey are asserting a constitutional right to havethese issues decided bythejury.
13No. 70064-2-1/14 

### law. Cityof Seattle v. Davis. 174Wn. App. 240, 245, 306 P.3d961 (2012). This court reviews the superior court's conclusions of law de novo for whether they are supported by the findings of fact. In re Washington Builders Benefit Trust. 173 Wn. App. 34, 65, 293 P.3d 1206, review denied. 177 Wn.2d 1018, 304 P.3d 114 (2013). The Parks challenge the instruction's statementthat the 2005 PSA's description ofthe propertywas satisfactory. Whetheran agreementviolates the statute of frauds is
a question of law. Maier. 154 Wn. App. at 15. As discussed above, the 2005 PSA 

### contained a valid legal description ofthe property. The trial courtwas entitled to make this determination and so instructthejury. The Parks challenge the statementthat substantialjustification existed for TMG to file a lis pendens. A lis pendens may be filed in an action affecting the title to real property. RCW 4.28.320. A lis pendens is not proper where filed in anticipation of a money judgment. Bramall v. Wales. 29 Wn. App. 390, 395, 628 P.2d 511 (1981). Substantial justification for a lis pendens exists where a claimant has a reasonable basis infact or in law to file the lis pendens. Udall v. T.D. Escrow Servs.. Inc.. 132Wn. App. 290, 303, 130 P.3d 908 (2006), reversed on other grounds. 159 Wn.2d 903, 154 P.3d 882 (2007). Here, TMG filed the lis pendens in its action seeking specific performance ofthe 2005 PSA. TMG released the lis pendens upon amending its complaint to include 

### money damages. The trial court determined a contractexisted and itwas not disputed that the Parks had not participated inclosing. The trial court noted thatTMGbelieved that the Parks anticipatorily repudiated the 2005 PSA and breached by failing to close

14No. 70064-2-1/15



### on the property. The courtthus properlyfound thatsubstantialjustificationexisted to file the lis pendens. The Parks challenge the jury instruction's statement that the purchase price of 

### the Parks' property was $2,425,000. TMGattached to its complaint a copy ofthe 2005 

### PSA, which demonstrates that the agreed purchase price for the property was $2,425,000. Intheir answer, the Parks attached their own copy of the 2005 PSA, which included an addendum reflecting that the parties agreed to raise the price to $2,580,000. This addendum bears only the Parks' initials. TMG disputed the addendum. In a pretrial order, the courtfound thatthe Parks failed to establish through competentevidence thatTMG agreed to increase the sale price. Ittherefore ruled as a matter of law that the established contract price was $2,425,000. The Parks again 

### attempted to introduceevidence concerning the sale pricethroughthe e-mail containing Home's opinion. The court excluded that evidence. The challenged jury instruction 

### reflects the court's finding and the evidence presented about the purchase price ofthe Parks' home. The court did not err in instructing the jury that these factual issues were conclusivelydetermined.

V. Attorney Fees 

### The Parks request attorney fees and costs both at the trial level and on appeal. 

### RAP 18.1(a) permits an attorneyfee requestif "applicable lawgrants to a party the right to recover" those fees. A party seeking fees under RAP 18.1 must support its request 

### with argument and citation to authority. PhillipsBldg. Co. v. An. 81 Wn. App. 696, 705, 915 P.2d 1146 (1996). The Parks do not do so. We denytheir requestforfees.

15No. 70064-2-1/16


### TMG requests attorney fees under the fee shifting provision in the 2005 PSA. UnderRCW4.84.330, the prevailing party inan action to enforce or defend a contractis entitled to attorney fees and costs as provided by the contract. Reeves v. McClain. 56 Wn. App. 301, 311, 783 P.2d 606 (1989). The 2005 PSA provides that "[i]f Buyer or Seller institutes suit againstthe other concerning this Agreement, the prevailing party is entitled to reasonable attorneys' fees and expenses." TMG is the prevailing party here. It is entitledto fees and costs on appeal. We affirm.

WE CONCUR:

16