IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

CHICAGO TITLE INSURANCE CO., a Washington corporation, Plaintiff,

RICHARD CAMPBELL and REBECCA LEE MARCY, husband and wife, and their marital community, Appellants,
and ROSALIND M. GREENBERG, an individual, Respondent. No. 69927-0- DIVISION ONE

UNPUBLISHED FILED: June 9. 2014

COX, J. - Chicago Title Insurance Co. commenced this interpleader action and placed intothe registry ofthe court an earnest money deposit held in

escrow for a failed real estate transaction. On cross motions for summary 

### judgment, the court awarded the depositto the prospective buyer, Rosalind Greenberg. Because there were no genuine issues ofmaterial fact for trial, and the buyerwas entitled tojudgment as a matter of law, we affirm. InApril 2011, Greenberg and herterminally ill husband resided inGreen Bay, Wisconsin. They decided to purchase a home for their daughter, Madeline, inthe Puget Sound area. While Madeline and real estate agent Donna Cowles looked at properties, Greenberg remained inWisconsin to be with her husband during his hospice care.No. 69927-0-1/2

On April 26, 2011, Greenberg submitted a preapproval loan application to
a Green Bay branch ofMerrill Lynch. The Greenbergs had several investment and savings accounts at the branch. The loan application did not initially identify

a specific property for purchase. In late April, the Greenbergs made an offer to purchase a property in Redmond. That offer was not accepted. Shortly thereafter, the Greenbergs made a full price offer to buy for $370,000 the Kirkland residence of Richard 

### Campbell and Rebecca Marcy("Campbell").1 That offerwas accepted. On May 1, 2011, the parties executed a purchase and sale agreement 

### (PSA). The PSA provided for a closing date ofJune 8, 2011. A financing addendum stated in part: 1. DOWN PAYMENT/ LOAN APPLICATION. 

### a. Loan Application. This Agreement is contingent on buyer obtaining the 

### following loan or loans to purchase the Property. ..:... Conventional First.... Buyer agrees to pay . . . $170,000 down, in addition to the Loans and to make written application for the Loans to pay the balance of the Purchase Price and pay the application fee, ifrequired, for the subject Property within 5 days . . . after mutual acceptance of this Agreement.
. . . 4. EARNESTMONEY. If Buyer... is unable to obtain financing after a 

### good faitheffort, then on Buyer's notice, thisAgreement shall terminate. The Earnest Money shall be refunded to the Buyer after Buyer delivers to Sellerwritten confirmation from Buyer's lender confirming (a) the date 

### Buyer's loan application for the subject property was made; (b) that Buyer possessed sufficient funds to close; and (c) the reasons Buyer's application was denied.[2]


### 1We adoptthe parties' naming conventions and refer to appellants as "Campbell" and respondent as "Greenberg." 2Clerk's Papers at 13.
-2-No. 69927-0-1/3
Greenberg subsequently deposited $7,000 into escrow as earnest money. In a declaration submitted below, Greenberg alleged she phoned Scott Mainard at Merrill Lynch on May 4, 2011, and informed him ofthe PSA. On May 6, 2011, she exchanged e-mails with Mainard and requested a pre-approval letter. Mainard responded that the mortgage landscape had changed dramatically, that loan processing took longerthan before, and that he would likely not have anything for her untilthe next week. On May 17, 2011, Merrill Lynch issued a pre-approval letter stating that Greenberg was pre-approved for a mortgage loan of$148,000. An attached document entitled "Your Next Steps inthe Financing Process" provided a checklist ofsteps Greenberg needed to take to complete the financing process. When asked about the checklist at her deposition, Greenberg said she received it when her husband's health "took a tremendous turn for the worse" and she "was 

### giving up control of everything" to her agent and her financial advisor at Merrill Lynch. She added that she "didn't knowthere was anything else Ineeded to do otherthan wait forpapers to come to me." Campbell points to nothing inthe record showing that Merrill Lynch did not obtain whateverwas required to approve the loan. On May 23, 2011, following an inspection ofCampbell's home, Greenberg negotiated a reduction inthe purchase price to $341,000. On June 1, 2011, Greenberg's agent requested an extension ofthe closing date by e-mail, stating that Merrill Lynch needed it to sell stockfor theNo. 69927-0-1/4

down payment. Greenberg corroborated this in her declaration, alleging that Scott Mainard at Merrill Lynch asked for the extension of time. On Friday, June 3, 2011, Greenberg's agent informed Campbell by e-mail that Merrill Lynch needed the extension "partly because ofthe way real estate is handled in [Wisconsin]. The bank was expecting to have 45 days afterthe inspection contingency was removed. They are working diligently on this and will keep us apprised ofany changes inthe closing date." Greenberg echoed the email in her declaration, stating that Scott Mainard told her "it is standard practice inWisconsin to have 45 days to close after the inspection contingency has been
removed." 

### On June 3, 2011, Merrill Lynchemployees stated in an internal e-mail that itwas time "to turn this preapproval [ofGreenberg's loan] intolive registration." According to Campbell, this refers to the process of converting a general pre

### approval into a property-specific loan application. There is nothing in this record showing that any delay ininitiating live registration was due to acts oromissions of Greenberg. On June 4, 2011, Greenberg's agent stated in an e-mail that Campbell 

### had not signed an extension of the closing date and wanted "information about the progress of the loan whichhasn't been started yet." Although Campbell suggests this shows that the loan process had not yet been started by Greenberg, this is mere speculation by him. The record plainlyshows that Greenberg had started the loan application process.No. 69927-0-1/5

On June 5, 2011, Campbell informed Greenberg's agent that he would not 

### grant an extension without "a thorough understanding of the issues at hand and the resolutions going forward." 

### Internal Merrill Lynchdocuments show that itwas actively processing the loan application during the final week before closing. Nothing in the documents indicates that Merrill Lynch's efforts were slowed by any omissions on 

### Greenberg's part. Greenberg alleged below that she "worked furiously" tofind anotherfinancing option, that she spoke with Ken Harding atWindemere 

### Mortgage, and that she was unable tofind any entity that could fund the loan by the closing date. She further alleged that "at all times our cash stores were 

### adequate to fund the down payment on the property." On June 8, 2011, Campbell offered to extend the closing date for an 

### additional $10,000. Greenberg declined the offer and the sale did notclose. 

### OnJune 9, 2011, Campbell informed Greenberg she was in default under 

### the agreement and demanded that sheforfeit the earnestmoney. Greenberg 

### disagreed anddeclined toauthorize release ofthe earnest money by Chicago
Title. On June 25, 2011, Greenberg's husband passed away. On October 14, 2011, Chicago Title filed this interpleader action. The 

### court subsequently granted Chicago Title's motion fordischarge and the matter 

### proceeded with Greenberg and Campbell asserting their respective claims to the
fund.
-5-No. 69927-0-1/6 

### Greenberg filed a cross claimagainst Campbell, alleging that "Campbell has refused to release the Earnest Money and is inbreach ofthe Purchase and 

### Sale Contract." Campbell also filed a cross claim. He alleged that Greenberg breached several terms ofthe real estate contract, including requirements for a 

### loanapplication on the subject propertywithin five days and an implied duty of good faith and fair dealing. Both parties moved forsummaryjudgment. In her motion, Greenberg argued that she was entitled to summary 

### judgmentbecause "Campbell does not have evidence that [she]defaulted under the [PSA]," she pursued financing in goodfaith, and the financing contingencyin 

### the agreement excused herfrom closing. In his response and counter-motion for summary judgment, Campbell argued that Greenberg's motion ignored her failure to obtain funds for a down payment, her failure to make a written 

### application for a loan on the subject propertywithin five days ofmutual acceptance, alleged alterations to her loanapplication, and herfailure to make a goodfaith effortto obtainfinancing. Atthe hearing on summary judgment, Campbell also argued that Greenberg had not acted in goodfaith because she failed to take any action on the checklist she received forfinalizing her loan. The superior courtgranted Greenberg's motion for summary judgment, stating in part: There's also no question that there was a prior offer made on 

### an unrelated property, and underthe facts before me, the application initially was made forthat property. It is also clearfrom reviewing all ofthe facts that the intent of 

### Ms. Greenberg was to change her loan application to the secondNo. 69927-0-1/7
property, the Kirklandproperty ofMr. Kirkland (sic) -- excuse me - ofMr. Campbell's and that she did everything she needed to do 

### fromMerrill Lynch's proposal and perspective to accomplish that change inaddress. Andthat's not unusual. She's getting preapproved, the amounts, the figures are very similar. Iunderstand the concern that Mr. Campbell makes, some 

### suggestion of fraud. Isimply can't find that there are any facts that supportthat. Ifind that underthe circumstances the burden is on Mr. Campbell to show

-- there's no question that she didn't obtain financing, but then there's a burden on Mr. Campbell to show that for some reason that she didn't obtain financing because ofsome legal inability to follow through by Ms. Greenberg. that she did something improper. And Idon't find that she did, and Idon't find 

### that Mr. Campbell sustained the burden that she did anything other than what she was required to do by Merrill Lynch to continue with the case. There is the suggestion that she - on the second issue, on 

### the down payment issue, there's a suggestion - and Iwould say it's conjecture - that she didn't have the funds to put$170,000 down, but we have her affidavit that she did as well as brokerage statements that suggestthat she did as well. 

### And so Iagain find that Mr. Campbell did notsustain the burden to show that she didn't have the money to pay the $170,000 atthe time that itwas scheduled to initially close, which was that June 8th date. 

### So long story short, Ido find that summaryjudgment inMs. 

### Greenberg's favor is appropriate.[3] The court also awarded Greenberg $21,853 inattorney fees under an 

### attorney fee provision in the PSA. Campbell appeals. STANDARD OF REVIEW 

### The sole issue on appeal iswhetherthe superiorcourt erred in granting 

### summary judgment. We reviewthat decision de novo, engaging in the same

3Report ofProceedings (Jan. 8, 2013) at 23-25 (emphasis added).
-7-No. 69927-0-1/8
inquiryas the trial court.4 A party may move for summaryjudgment by pointing out the absence of 

### evidence to supportthe opposing party's case.5 Ifa party carries that initial burden, the burden then shifts to the opposing party to setforth specific facts 

### showing a genuine issue of material fact fortrial.6 The nonmoving party may not rely on speculation or "mere allegations, denials, opinions, or conclusory 

### statements" to establish a genuine issue of material fact.7 Summaryjudgment is proper ifthe pleadings, affidavits, depositions, and admissions on file demonstrate that there is no genuine issue of material fact and that the moving 

### party is entitled to summary judgment as a matter oflaw.8 All reasonable inferences from the evidence must be drawn in favor ofthe nonmoving party.9 Applying these principles here, we conclude the court did not err in granting summaryjudgment.
BURDEN OF PROOF Initially, the parties disagree on the applicable burden of proof. Greenberg correctly notes, and Campbell does not dispute, that a party moving for summary

4 Dillon v. Seattle Deposition Reporters. LLC, 179 Wn. App. 41, 58-59, 316P.3d 1119(2014). 5Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182(1989). 6jd, at 225. 7 Int'l Ultimate. Inc. v. St. Paul Fire &Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (2004). 8CR 56(c); Dillon, 179 Wn. App. at 59. 9 Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979).
-8-No. 69927-0-1/9
judgment can carry their initial burden by pointing outthe absence ofevidence 

### supporting the opposing party's claim.10 Greenberg moved forsummary judgment on this basis below, arguing that Campbell had no evidence supporting his claim that she breached their agreement and that she was therefore entitled to the earnest money. The trial court adopted Greenberg's position, concluding that "there's a burden on Mr. Campbell to show that.
. . she didn't obtain 

### financingbecause
. . . she did something improper."11 For the first time in his reply brief, Campbell argues thatthis is not the appropriate burden of proof. We 

### do notconsiderarguments raised for the first time in a replybrief.12
GENUINE ISSUE OF MATERIAL FACT Turning to the merits, Campbell contends the superior court erred in concluding there was no evidence supporting his claim that Greenberg breached the parties' agreement. He maintains there was evidence that she breached the
contract in two respects. First, he contends "Greenberg failed to make a good faith effort to obtain 

### financing." He points out that "[t]here is in every contract an implied duty of good faith and fair dealing . . . ."13 The duty "arises only inconnection withterms agreed to bythe parties."14 This court has held thatwhen, as here, a real estate

10 Young, 112 Wn.2d at 225 n.1. 11 Report of Proceedings (Jan. 8, 2013) at 24. 12 Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). 13 Badgettv. Sec. State Bank. 116 Wn.2d 563, 569, 807 P.2d 356 (1991). 14 Id,; Johnson v. Yousoofian, 84 Wn. App. 755, 762, 930 P.2d 921 (1996).
-9-No. 69927-0-1/10

contract makes third-party financing a condition ofthe duty to close, "[a] buyer 

### has a duty to act in goodfaith to attempt to obtainthird-partyfinancing."15 Itis undisputed thatthird-party financing was a condition precedent of Greenberg's duty to close. It is also undisputed that Greenberg applied for financing on April 26, 2011 and received a preapproval letter on May 17, 2011. Campbell argues the trial court erroneously focused on the April 26, 2011 application, thatthe application was "immaterial," and that the good faith issue 

### actually turned on the May 17, 2011 preapproval letter and Greenberg's inaction thereafter. He contends an issue offact exists whether Greenberg acted in good 

### faith during that period.16 He points out, as he did insummary fashion at oral 

### argument below, that the checklist attached to the May 17, 2011 preapproval letter outlined the steps she needed to take for final approval ofher loan. He 

### contends Greenberg's inaction regarding the checklist, "coupledwith the parallel lack of action at Merrill Lynch [and] the lack ofdocuments or Merrill Lynch testimony
... to prove otherwise," demonstrate a lack of good faith. We disagree.

15 Salvo v. Thatcher, 128 Wn. App. 579, 585, 116P.3d 1019(2005). 

### 16Although Campbell discusses several questions he raised below 

### regarding the April 26, 2011 financing application, he does so to show the misplaced focus of the trial court. Heconcludes that the April 26, 2011 financing application is irrelevant and that Greenberg's breach occurred between May 17, 2011 and the closing date. Accordingly, we do not address the arguments 

### relating to the April 26, 2011 application. We note, however, thatthese 

### arguments also sufferfrom Campbell's erroneous view of the burden ofproof.
-10-No. 69927-0-1/11

As discussed above, itwas Campbell's burden to provide evidence showing a breach ofthe duty ofgood faith. Although he contends Greenberg took no action on the loan checklist, she stated in her deposition that, due to her husband's illness, she had turned everything overto her agent and herfinancial advisor at Merrill Lynch. There is no evidence to show that anything needed by Merrill Lynch to process the loan was not timely provided, either by her, her agent, or herfinancial advisor. Campbell also fails to discuss the specific matters
on the listand provides no evidence thatthey were inany way related to Merrill Lynch's failure to fund the loan bythe closing date. Likewise, he provides no evidence supporting his claim thatthere was a "parallel lack of action at Merrill 

### Lynch" between May 17th and early June. Even ifsuch evidence existed, there is no evidence that Merrill Lynch's lack ofaction was caused by any action or omission by Greenberg. On the other hand, there is unrebutted evidence that the delay in 

### processing the loanwas notGreenberg's fault. OnJune 01, 2011, Greenberg's 

### agent stated in an e-mail to Campbell that the lender needed an extension of the closing date inorderto sell stock for the down payment. Two days later, she explained to Campbell thatthe extension was also due to "the way real estate is handled in [Wisconsin]. The bankwas expecting to have 45 days afterthe 

### inspection contingency was removed. They are working diligently on this and will keep us apprised of any changes in the closing date."

11No. 69927-0-1/12
In addition, Greenberg's actions inJune showed good faith efforts to 

### obtain financing. When itbecame apparentthat Merrill Lynch could not fund the loan by the closing date, Greenberg did notterminate the agreement but instead sought an extension ofthe closing date to finalize the loan. She also pursued alternative financing. Insum, Campbell failed to produce evidence demonstrating a genuine issue of fact whether Greenberg breached her duty to pursue financing in good faith.17Second, Campbell contends Greenberg's failure to tenderthe down 

### paymentfund breached the PSA. Buttenderof the down paymentwas excused 

### under the agreement iffinancing was unavailable.18 And while Greenberg's efforts to procure a down payment are relevant to the question of her goodfaith, Campbell points to nothing showing that Greenberg did not make good faith efforts to obtain the down payment. Instead, he simply argues that Greenberg
came forth with no evidence showing that she made good faith efforts to procure 

### the down payment by the closing date. Butas discussed above, the burden was

17 Campbell argues inpassing that "[t]he trial court erred in allowing 

### admission of the alleged May 4th application" because "it is considered a 'lost instrument.'" App. Br. at 31. This argument apparently refers to Greenberg's 

### claim that she notifiedMerrill Lynch on May4th that her prior financing application now applied to the offer she made on Campbell's property. This argument 

### appears to be made for the first time on appeal and, in any event, is too conclusory to meritdiscussion. RAP 2.5(a); MP Medical Inc. v.Wegman, 151 Wn. App. 409, 420-21, 213 P.3d 931 (2009). 18 See Salvo, 128 Wn. App. at 586.
-12-No. 69927-0-1/13

on Campbell to demonstrate Greenberg's lack of good faith. 

### Campbell fails to demonstrate a genuine issue of fact. Greenberg was 

### entitled to judgment as a matter oflaw. The superior court properly granted Greenberg's motion for summary judgment. AndGreenberg was entitled to an 

### award of her attorney fees and expenses under the "prevailing party" provision in
the PSA. 

### Likewise, Greenberg is entitled to reasonable fees and expenses under 

### that provision on appeal, subject to her compliancewith RAP 18.1. We affirm the orderon summaryjudgment and award fees on appeal to Greenberg. 

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WE CONCUR: 

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