### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES N. FOTINOS, No.79074-9-1

Appellant, V. CRAIG J. KALICH and JULIET D. KALICH,Husband and Wife,and COLDWELL BANKER KLINE AND ASSOCIATES,a Washington Corporation,and LOREN HOWARD, an individual, Respondents. DIVISION ONE UNPUBLISHED OPINION

FILED: October 21,2019 

### APPELWICK,C.J.— Fotinos appealsfrom summaryjudgmentdismissing his action on a residential real estate purchase and sale agreement. Fotinos did not timelyfile responsestothe motionsforsummaryjudgment. His attorney attempted to file responses with the trial court at the hearing, citing personal hardship. The trial court did not accept them. Fotinos argues that the trial court erred in (1) granting respondents' summary judgment motions without considering his responses, (2) dismissing his fraudulent misrepresentation claim against the Kalichs,and (3)denying his motion for reconsideration. We affirm. FACTS James Fotinos decided to sell his home in Oregon and move to Chehalis, Washington. In May 2015,Shannon Rogers,hisformerreal estate broker,referred him to Martha Hunt,a real estate broker at Coldwell Banker Kline and AssociatesNo.79074-9-1/2

in Centralia,Washington. Hunt acted as Fotinos's real estate broker and showed him about20 homes in Chehalis. After returning to Oregon,Fotinos made an offer
on a home owned by Craig and Juliet Kalich. On May 28,2015,Fotinos and the Kalichs entered into a purchase and sale agreement. Fotinos also signed acknowledging receipt of the Kalichs' seller disclosure statement. The purchase and sale agreement contained an inspection addendum, which conditioned the agreement on Fotinos's satisfaction with an inspection of the Kalichs' property and allowed Fotinos to request repairs before closing. On June 1, 2015, Loren Howard inspected the property and prepared an inspection reportfor Fotinos. Fotinos testified that he never reviewed the report, but still decided to go ahead with the transaction based on telephone conservations he had with Hunt. After the inspection, Fotinos requested that the Kalichs replace an exterior window sill, replace cartridges in the front windows, repair a plumbing leak,and add splash blocks at all downspout locations. He also requested thatthe Kalichs install gutters and downspoutson thegarage,and install
a ventto allow air circulation in the access doorto the hotwatertank. The Kalichs completed those requests on June 6. The sale of the property closed on July 1, 2015. On November 3,2016,Fotinosfiled an action againstthe Kalichs, Coldwell Banker, and Howard for (1)fraudulent misrepresentation, (2) breach of contract, (3) violations of the Consumer Protection Act, chapter 19.86 RCW, and (4) negligence. He alleged that all of the defendants knowingly and intentionally
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concealed orfailed to disclose their knowledge ofvarious defects on the property. The following July, the Kalichs, Co!dwell Banker, and Howard filed motions for summary judgment, and a hearing date on the motions was set for August 25, 2017. Fotinos failed to timely file responses to the motions. On August 18, he moved to continue the August 25 hearing. The trial court denied his request, but the parties agreed to extend the deadline for Fotinos's responses to Tuesday, August 22. At the start of the August 25 hearing, Fotinos still had not filed his responses. During the hearing, he handed his responses to the trial court "for filing." The trial court did not consider the responses and granted the motions for summary judgment. Fotinos then filed a motion for reconsideration,which the trial court denied. Fotinos appeals. DISCUSSION Fotinos makes three arguments. First, he argues that the trial court erred in granting respondents' motions for summary judgment without considering his responses. Second,he arguesthatthe trial courterred in dismissing hisfraudulent misrepresentation claim against the Kalichs.1 Third, he argues that the trial court abused its discretion in denying his motion for reconsideration.

1 Fotinos assigns error to the trial court's dismissal of his "negligent misrepresentation" claim against the Kalichs. But, Fotinos made a fraudulent misrepresentation claim in his complaint. And, he refers to the claim as a "fraudulent misrepresentation" claim elsewhere in his brief. Accordingly, we address the trial court's dismissal of his fraudulent misrepresentation claim, not a negligent misrepresentation claim. 3No.79074-9-1/4

I. Timeliness ofAppeal As an initial matter,Coldwell Banker argues that Fotinosfailed to timelyfile his notice of appeal,because he filed his motion for reconsideration one day late. Therefore, it argues that Fotinos's motion did not extend the 30 day appeal period past September 24, 2017. Fotinos filed his notice of appeal on September 29, 2017. Lewis County Local Rule 7(A)(5) and CR 59(b) require that motions for reconsideration be filed within 10 days after entry ofa judgment or order. Fotinos filed his motion for reconsideration on September 5,2017,11 daysaftertheAugust 25, 2017 orders granting summary judgment. But, the September 4, 2017 filing deadline fell on Labor Day, a legal holiday. RCW 1.16.050(1)(g). Because the deadline fell on a holiday,the period for him to file a motion for reconsideration ran until the end ofthe nextday,September 5. CR 6(a). Thus,Fotinostimely filed his motion for reconsideration, which extended the 30 day appeal period past September 24,2017. See RAP 5.2(e). Accordingly, Fotinos timely appealed. II. Motionsfor Summary Judgment A. Responses Fotinos argues that the trial court erred in granting respondents' three motions for summary judgment without considering or striking the responses he filed on August 25, 2017. Alternatively, he argues that if the trial court did strike his responses from the record, its decision rested on untenable grounds and was manifestly unreasonable.

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At the start of the August 25, 2017 hearing on respondents' summary judgment motions, Fotinos still had notfiled his three responses. He had e-mailed his response to Coldwell Banker two days prior, and had e-mailed his responses to Howard and the Kalichs the day before. During the hearing, he gave the trial court copies of his responses "for filing." The trial court did not consider Fotinos's responses in granting respondents'three motions. Itstated,"I'm going to grantthe motions for summary judgment. And I really don't have any choice in this matter. The rules are very clear; and despite those rules, you were given additional time and still [did] not give any response." The filing date on Fotinos's responses is August 25,2017. Fotinos argues that the trial court "had a duty to make a discretionary decision regarding [p]laintiff's responsive pleadings, which remained a part ofthe [c]ourt's record when [it] granted the motions for summary judgment." Because it did not, he contends that this court should consider his responses on review. A judge may permit papers to be filed with him or her under CR 5(e). On review of an order granting summary judgment, we consider only the evidence called to the attention ofthe trial court. RAP 9.12. The order granting or denying
a summary judgment motion must designate the documents and other evidence called to the court's attention. Id. The orders here do not list Fotinos's responses
as something that the trial court considered. Under RAP 9.12, there are only three ways for a document or evidentiary item to properly be made part ofthe record on review:(1)it may be designated in the order granting or denying the motion for summary judgment, (2) it may be
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designated in a supplemental order of the trial court, or (3)counsel for all parties may stipulate that it was called to the attention of the trial court. Green v. Normandy Park Riviera Section Comtv. Club, Inc., 137 Wn.App. 665, 679, 151 P.3d 1038 (2007). None ofthose things occurred to make Fotinos's responses a part ofthe record on appeal. Whether or notthe trial court made an oral ruling on acceptance of the proffered pleadings is of no consequence. It is clear that the pleadings were called to the court's attention, and that the trial court exercised discretion by not accepting the pleadings or designating them in the order. As a result, they were not part of the record and the trial court did not have a duty to strike his responses. We do not consider them on review. In the alternative, Fotinos argues that the trial court's decision to reject his responses rested on untenable grounds and was manifestly unreasonable. He argues that the trial court relied on the unsupported fact that he still had not filed responses, it applied the wrong legal standard,2 and a reasonable person would have been accommodating. A trial court may accept responses atany time prior to issuing its final order
on summary judgment.3 Brown v. Peoples Mortg. Co., 48Wn.App.554,559,739

2 Specifically,Fotinos arguesthatthe trial courtwas incorrectwhen it stated, "I really don't have any choice in this matter," because it applied a deadline to his responses without acknowledging its duty and authority to exercise discretion. Immediately before explaining that it did not have a choice, the trial court stated, "I'm going to grant the motions for summary judgment." In this context, it is clear that the trial court was referring to its decision to grant respondents' summary judgment motions, not its decision to reject Fotinos's responses. The trial court did, in fact, acknowledge its duty and authority to exercise discretion by determining that it would not consider his responses.

3 Although this rule refers to affidavits,this court has applied it to responses to summary judgment motions. See,e.g., Davies v. Holy Family Hosp., 144 Wn. 6No.79074-9-1/7

P.2d 1188 (1987). But,"whether to accept or reject untimely filed [responses]lies within the trial court's discretion." Id. This court reviews a trial court's ruling on whetherto acceptorstrike an untimely responsefor an abuse ofdiscretion. Davies
v. Holy Family Hosp., 144 Wn.App.483,499, 183 P.3d 283(2008),abrogated on other grounds by Frausto v. Yakima HMA, LLC, 188 Wn.2d 227, 393 P.3d 776 (2017). "A trial court abuses its discretion only if its decision is manifestly unreasonable or rests upon untenable grounds or reasons." Id. at 497. The respondents filed their motions for summary judgment on July 20 and 27,2017,and the hearing was setforAugust 25,2017. Under CR 56(c), Fotinos's responses were due by August 14, 11 days before the hearing date. Fotinos still had notfiled his responses byAugust 16. On August 18,fourdays after he missed the deadline, he moved to continue the August 25 hearing. At the hearing on Fotinos's motion for a continuance, Fotinos's attorney, stated that, after he came back from paternity leave, he could not respond to the motions in time. The trial court denied Fotinos's motion, but respondents agreed to accept Fotinos's late responses by Tuesday, August 22. Fotinos still had not filed his responses by the start of the August 25 summary judgment hearing. At the hearing, he handed copies of his responses to the trial court "for filing." He
App.483,500, 183 P.3d 283 (2008)(holding that the trial court did not abuse its discretion in denying Davies's motion to submitan untimely responsewhen Davies failed to establish a basis for not complying with the time period in CR 56(c)), abrogated on other grounds by Frausto v.Yakima HMA,LLC, 188Wn.2d 227,393 P.3d 776 (2017); ldahosa v. King County, 113 Wn.App. 930, 937, 55 P.3d 657 (2002)(holding thatthe trial courtdid not abuse its discretion in refusing to accept ldahosa's untimely response based on "Idahosa's dilatory pattern, the lateness and size ofthe response,and a pending trial date less than two months away"). 7No.79074-9-1/8

stated that "it was impossible"for him to get the responses done with the amount oftime given, and that the trial court should have continued the hearing. Fotinos argues that, in rejecting his responses,the trial court relied on the "unsupported fact"that he still had notfiled them. (Emphasis omitted.) But,he did not file his responses in time for the hearing. Rather, during the hearing, he handed the trial court copies of his responses. Fotinos also argues that a "reasonable person . . .would have been accommodating." He cites no authority that the trial court had to do so. Accepting them would have been within the discretion ofthe trial court. But, Fotinos does not address why it would have been reasonable for the trial court to consider responses when not all of the moving parties had an opportunity to reply as provided under the court rules.4 See CR 56(c). Fotinos moved for a continuance on August 18, four days after his initial response deadline. The trial court denied his motion, but respondents agreed to accept his late responses by August 22. Despite agreeing to this extension, Fotinos failed to file any responses by that date. And, he filed nothing before the hearing three days later. Whetherto acceptorrejectuntimely responses lies within the trial court's discretion. See Brown, 48Wn.App.at559. In declining to consider Fotinos's responses,the trial court cited the substantial amount oftime he had to respond, and his failure to meet his initial and extended deadlines. Accordingly,

4 Counselforthe Kalichsstated thathe had received an e-mailwith Fotinos's response the night before, and that he had not had a chance to reply. 8No.79074-9-1/9

the trial court acted well within its discretion in declining to consider his untimely responses. B. Fraudulent Misrepresentation Claim Even if we were to consider Fotinos's response to the Kalichs' summary judgmentmotion,his argumentregarding their motion would fail. Fotinos contends that his fraudulent misrepresentation claim against the Kalichs should not have been dismissed,because the Kalichs "failed to raise anyfactual or legal arguments opposing it." In their motion,the Kalichs argued that Fotinos's lack ofduediligence precluded his fraud claim. They relied primarily on Fotinos's deposition testimony and Howard's inspection report. The Kalichs' evidence also included their seller disclosure statement. Fotinos does not cite additional evidence in his response. This court reviews summary judgment orders de novo, considering the evidence and all reasonable inferences from the evidence in the light most favorable to the nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080(2015). Summaryjudgmentis appropriate only when no genuine issue exists
as to any material fact and the moving party is entitled to judgment as a matter of law. Id. If a plaintiff, "'fails to make a showing sufficientto establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment is proper. Young v. Key Pharms., Inc., 112 Wn.2d 216,225,770 P.2d 182 (1989)(quoting Celotex Corp.v. Catrett, 477 U.S. 317,322, 106 S.Ct. 2548,91 L. Ed. 2d 265 (1986)).

9

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To prevail on a fraud claim, a plaintiff must prove by clear, cogent, and convincing evidence: (1) a representation of an existing fact; (2) its materiality; (3) its falsity; (4)the speaker's knowledge of its falsity or ignorance of its truth;(5)his intent that it should be acted on by the person to whom it is made; (6) ignorance of its falsity on the part of the person to whom it is made; (7) the latter's reliance on the truth of the representation; (8) his right to rely upon it; (9) his consequent damage. Baertschi v. Jordan, 68Wn.2d 478,482-83,413 P.2d 657 (1966). In the Kalichs'seller disclosure statement,they answered "no"to questions asking (1)ifthere were any defects with their hotwatertank or heating and cooling systems,(2)if there had been anyflooding,standing water, or drainage problems
on the propertythataffected the property,and (3)ifthere wasany materialdamage to the property from floods. The Kalichs answered "don't know" to questions asking (1)ifany partofthe property contained waste,(2)ifthere wasany asbestos
on the property, (3) if the property had been used for commercial or industrial purposes,and (4)if the property had been used as a legal or illegal dumping site. They did not answer a question asking if there were any defects with the garage floors and windows. Howard inspected the property for Fotinos after Fotinos signed the Kalichs' sellerdisclosure statement,acknowledging his receiptofa copy. Howard reported "damaged beams present in the crawl space," "wood rot just inside the crawl space,"and "visible moisture damaged trim." He also noted that"[t]here waswater present on the garage floor northwest,"and thatthe "garage gutters had improper pitch/standing water." And, he noted that "[t]he water heater compartment had
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multiple screws and trim to remove for access. Recommend access be provided and reinspect." In his complaint, Fotinos alleged that the Kalichs knew but affirmatively denied knowledge ofthe following material defects on the property: [F]looding, standing water, and drainage in the garage and residence, waste buried in the property, material damage to the property caused by flooding, use of the property for commercial or industrial purposes, use of the property as a dumping site, and use ofthe property as a wrecking site. He alleged that, prior to closing, fence installers discovered that "the property's land was filled with wrecking yard debris," including "engine parts, automobile machinery,chrome siding,wire, headlights,glass, and barbells." He also alleged that the Kalichs falsely and knowingly denied other material defects in their seller disclosure statement, including (1)a heating vent inside a cupboard,(2)asbestos materials, (3)separating roof shingles, (4)a lack offorced air or central heating, (5)a broken water heater,(6)flooding in the crawl space,(7)windows that did not fit together correctly, and (8)cracks in the garage foundation. In their seller disclosure statement,the Kalichs did notdeny that there were defects involving waste, asbestos, use of the property for commercial and industrial purposes, use of the property as a dumping site, separating roof shingles, windows that did not fit together, and cracks in the garage foundation. Instead, the Kalichs answered that they did not know whether defects involving waste,asbestos, use ofthe property for commercial and industrial purposes, and
use of the property as a dumping site existed. Also, they did not answer the question about the garage floor and windows,and there were no questions about
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roofshingles. Based on this evidence,there is no genuine dispute ofmaterialfact regarding thefirst elementoffraud,a representation ofan existing fact. And,even ifthe Kalichs had represented thatthose defects did not exist,there is no evidence in the record oftheir knowledge ofthose defects. The Kalichs denied that there were defects involving the hot water tank, heating and cooling systems, flooding, standing water, drainage problems, and damagefrom flooding. But,in Howard's inspection report, he noted thatthere was damage in the crawl space, moisture damage,water present on the garage floor, standing water in the garage gutters, and no access to the water heater. He recommended repairing the crawl space,installing "splash blocks at all downspout locations," installing "gutters and/or downspouts on garage,"and providing access to the water heater. At his deposition, Fotinos stated that he "never got" Howard's report, and agreed that he "had an absolute right to a copy" of the report. He cited "[v]erbal telephone conservations with Martha Hunt"as his reason for still going ahead with the transaction. Fotinos was asked if he ever called Howard to saythat he had not received a copy ofthe report. Fotinos responded,"It never even was thought ofat that point in time. I had moved and I was busy unpacking." In a fraud claim, a court's inquiry into a plaintiff's right to rely on a defendant's representation involves the "question of his diligence in ascertaining the facts for himself" and "his exercise of care and judgment in acting upon representations which run counter to knowledge within his possession or reach." Rummer v. Throop, 38 Wn.2d 624, 633, 231 P.2d 313 (1951). Howard's report
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would have put Fotinos on notice of moisture damage, flooding, drainage problems, and his recommendation that access to the water heater be provided for reinspection. Based on this evidence,there is no genuine dispute of material fact regarding Fotinos's right to rely on the Kalichs' representations about those defects.5 Last,Howard did not report problems with the heating and cooling systems, including whether there was a heat vent inside of a cupboard, or whether there
was no forced air or central heating. But, despite the Kalichs' denial that there
were defects with the heating and cooling systems, there is no evidence in the record of their knowledge of those defects. Thus, there is no genuine dispute of material fact regarding the knowledge element offraud. The trial court did not err in dismissing Fotinos's fraudulent misrepresentation claim againstthe Kalichs on summary judgment. Ill. Motion for Reconsideration Fotinos argues last that the trial court abused its discretion in denying his motion for reconsideration when he offered "a reasonable explanation"for notfiling his responses on time. He relies on a declaration attached to the motion in which Fotinos's attorney provided details about his reasons for not timely filing Fotinos's responses. The declaration stated that on June 22, 2017, his pregnant wife was admitted to the hospital due to concerns about their unborn child. He was then in and out of the hospital for several weeks, until their child was born on July 14.

5 And, even if Fotinos did have the right to rely on those representations, there is no evidence in the record ofthe Kalichs'knowledge ofthose defects. 13No.79074-9-1/14

When he returned to work in early August, he had overdue work from the three weeks preceding his child's birth, plus upcoming response deadlines for motions in several cases. This court reviews an order denying a motion for reconsideration for an abuse ofdiscretion. Riversv.Wash.State Conf.of Mason Contractors, 145Wn.2d 674, 685, 41 P.3d 1175 (2002). Fotinos states that his three responses to respondents' summary judgment motions "were presented with" the motion for reconsideration,and thatthe trial courtagain rejected those responses. He argues that "a reasonable person would not have denied" his motion after his attorney provided information abouthis"medicalemergency,ongoing hardship,and diligent effort to respond." While the motion for reconsideration amplified the hardship Fotinos's attorney faced,those additional details were available at the time of the summary judgment. The trial court was aware ofthe hardship argumentand the competing interests ofthe other parties,when it ruled on the summary judgment motion. The reconsideration motion changed nothing. Accordingly,the trial courtdid notabuse its discretion in denying Fotinos's motion for reconsideration. IV. Attorney Fees A. Fotinos Fotinos requests attorney fees under RAP 18.1. He states that the purchase and sale agreement he entered with the Kalichs and the realtor agreement he entered with Coldwell Banker provide for litigation costs and

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attorney fees to be awarded to the prevailing party.6 Because Fotinos does not prevail on appeal,we deny his request. B. Coldwell Banker Coldwell Banker requests attorney fees under RAP 18.1 and RAP 18.9(a),
on the basis that Fotinos's appeal was untimely.7 Because Fotinos timely appealed,we deny its request. We affirm.



### 7 7 1 , 744e WE CONCUR:

6 Fotinos also states thatif Howard had provided a preinspection agreement for his services,then that agreementwould have provided that litigation costs and attorney fees be awarded to the prevailing party. But, there is no preinspection agreement in the record. Thus,Fotinos cannotseek attorney fees on that basis. 7 Co!dwell Bankeralso statesthat"Fotinosfailed to submita timely appellate brief." Fotinos moved to file a reply brief about six months after the last response briefwas filed. But,this court denied his extension motion. Because this court is notconsidering Fotinos's untimely reply brief,wedecline to award Coldwell Banker attorney fees on the basis that Fotinos filed his reply brief late. 15