IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
PAUL COLVIN and PATRICIA GUERTIN, Appellants,

v. JAMES YOUNG and CAROLYN YOUNG; KRISTINE K. and JOHN DOE SMITH, Respondents. No. 69051-5-1 C"3

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UNPUBLISHED OPINION FILED: April 21, 2014 Verellen, J. — In this action arising out of a residential real estate transaction, 

### the superior court dismissed the buyers' claims for intentional and negligent misrepresentation underthe independent duty doctrine. The record and briefing on appeal are inadequate. We affirm. FACTS In2006, Kristine Smith sold her Lynnwood residence to Paul Colvin and Patricia 

### Guertin (Colvin). Atthe time ofthe sale, a fence ran between the Colvin home and their 

### neighbors to the south, James and Carol Young. There was also a grassy knoll between the fence and the Youngs' driveway. Inthe seller disclosure statement portion ofthe real estate contract (also known


### as Form 17), Smith answered a series ofquestions by checking boxes next to "Yes," "No," or "Don't know." She checked "Yes" inresponse to the question, "Do you haveNo. 69051-5-1/2 

### legal authority to sell the property?"1 She checked "Don'tKnow" inresponse to several questions, including "Are there any encroachments, boundary agreements, or boundary 

### disputes?"; "Isthere a boundary survey forthe property?"; and "Arethere any 

### covenants, conditions, or restrictions which affect the property?"2 In November, 2007, and again in2009, Colvin had his property surveyed. The 

### 2007 survey was recorded and shows the corners ofthe southern boundary that separates Colvin's and the Youngs' properties. Itnotes that the surveyors found capped rebar markers on the ground at the southern corners. The survey does not show the location ofthe fence or other structures nearthe southern boundary. In July, 2011, Colvin filed this action against Smith and the Youngs, alleging adverse possession and mutual acquiescence against the Youngs and intentional and/or negligent misrepresentation against Smith. The complaint alleged that in May 2011, the Youngs informed Colvin thatthey had previously granted, and now wished to revoke, an unrecorded license allowing Smith to use a portion oftheir property along her southern boundary. The complaintfurther alleged that Smith "never identified any easements, licenses, or otherencumbrances on the property regarding the Youngs 

### and/or her use ofthe disputed property."3 The complaint stated that Smith represented that her property extended to the Youngs' driveway and that "Smith intentionally and/or 

### negligently failed to disclose the property boundary and/or acquiescence to the use of the disputed property."4


### 1Clerk's Papers at 50. 2Clerk's Papers at 50. 3Clerk's Papers at 33. 4Clerk's Papers at 35.No. 69051-5-1/3 Smith moved for summaryjudgment, arguing that Colvin's claims were barred by the independent duty doctrine and the three-year statute of limitation. Smith stated in herdeclaration that she spoke only once with Colvin on herfront porch and never discussed any real estate issues with him. In his response to Smith's motion, Colvin argued that Smith had fraudulently concealed the true location ofthe southern boundary and her encroachment on, and permissive use of, the Colvin property. Colvin claimed that this fraudulent concealment breached a duty independent ofthe parties' contract and that his claims were not barred by eitherthe independent duty rule or the statute of limitation. In his declaration, Colvin stated "I have mowed the grass, occupied a portion of the disputed property with my deck and fence,
. . . and have generally used and 

### maintained all of the disputed property since Imoved in."5 He alleged that he "was
never advised, either by Defendant Smith or Defendants Young, that the property Iwas 

### maintaining did not belong to me until April 2011, when Ireceived a letter from the Young's attorney."6 He further alleged that "[i]twas only recently discovered by me that property Ihad maintained and exclusively used since moving inwas purportedly owned by Defendants Young."7 In a responsive declaration, James Young alleged that he and his wife had 

### granted "permissive use" of the disputedpropertytoSmith in 2002.8 According to Young, shortly after buying Smith's property in 2006, Colvin repeatedly asked the
5Clerk's Papers at 39. 

### 6Clerk's Papers at 38. 7Clerk's Papers at 39. 8Clerk's Papers at 72.No. 69051-5-1/4 

### Youngs "to quitclaim the area to him."9 The Youngs understood his request included both the fenced property and the grassy knoll between the fence and the Youngs' 

### driveway. They alleged that "[s]ince 2006 Mr. Colvin knew that the property inquestion 

### (fenced area and grassy knoll) was not his property."10 The court granted summaryjudgment and dismissed Colvin's claims against Smith. Colvin and the Youngs subsequently settled the remainder ofthe case. Colvin appeals the dismissal of his claims against Smith. DECISION The sole issue on appeal is whetherthe superior court erred in granting summaryjudgment. We review that decision de novo, engaging inthe same 

### inquiry as the trialcourt.11 Summaryjudgment is properifthe pleadings, affidavits, depositions, and admissions on filedemonstrate thatthere is no genuine issue of material fact and thatthe moving party is entitled to summaryjudgment as a matterof law.12 All reasonable inferences from the evidence must be drawn in favor ofthe 

### nonmoving party.13 

### The parties agree that the superiorcourt granted summaryjudgmentbased on its conclusion that Colvin's claims for intentional and negligent misrepresentation were 

### barred by the independentduty doctrine. Colvin contends the court erred in dismissing
9Clerk's Papers at 73. 10 Clerk's Papers at 72. 11 Dillon v. Seattle Deposition Reporters, LLC Wn. App. , 316 P.3d 1119, 1127 (2014) (quoting Green v. Normandy Park Riviera Section Cmtv. Club, 137Wn. 

### App. 665, 681, 151 P.3d 1038 (2007)). 

### 12 \± (citing CR 56(c)). 13 Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979).No. 69051-5-1/5 those claims. For several reasons, we conclude this contention is not reviewable on the existing record and briefing. First, our review is limited by RAP 9.12 and the superior court's order on summaryjudgment. RAP 9.12, which governs review of summaryjudgment orders,

states: On review of an order granting or denying a motion for summary judgmentthe appellate court will consider only evidence and issues called to the attention ofthe trial court. The order granting or denying the motion for summaryjudgment shall designate the documents and other evidence called to the attention ofthe trial court before the order on summary 

### judgmentwas entered. Documents or otherevidence called to the attention ofthe trial court but not designated in the order shall be made a 

### part ofthe record by supplemental order ofthe trial court or by stipulation of counsel. The order in this case states that the court read and considered "the following 

### pleadings: Kristine K. Smith's Motion for Summary Judgment, Declaration ofKristine K. Smith."14 The orderdoes not mention any of Colvin's submissions below, and Colvin has not made those submissions a part ofthe reviewable record on appeal by 

### supplemental order or stipulation ofcounsel. Second, though mentioned in the summaryjudgmentorder as a document 

### considered by the court below, Smith's declaration has notbeen made a part of the official record on review. 

### Third, the record on appeal is inadequate to apply the independentduty doctrine. 

### "Theindependentduty doctrine is an analytical framework that is used to determine whether one party to a contract can bring tort claims against anotherparty to the

14 Clerk's Papers at 2.No. 69051-5-1/6 

### contract."15 The doctrine allows an action in tort ifthe injury is traceable to the breach of 

### a duty arising independently of the contract.16 However, "[t]he analytical framework provided bythe independent duty doctrine is only applicable when the terms ofthe contractare established by the record. Todetermine whethera duty arises independentlyofthe contract, we mustfirstknow whatduties have been assumedby 

### the parties within thecontract."TM The record before us does not include the purchase and sale agreement. Although itincludes the seller disclosure form, this is, at most, 

### only a portion of the contract.18 Colvin has failed to carry his burden of providing an adequate record forreview.19 Fourth, Colvin's briefing is inadequate and raises theories and arguments that differ from those raised below. The complaint alleged claims for "Intentional and/or 

### Negligent Misrepresentation."20 It did not mention fraud, fraudulent concealment, the sellerdisclosure form, or Smith's alleged knowledge that herdeck encroached onto the 

### Young's property. The complaint simplyalleged that Smith "never identified any easements, licenses, or other encumbrances on the property regarding the Youngs 

### and/or her use of the disputed property,"21 that Smith had an unrecorded license to

15 Donatelli v. D.R. Strong Consulting Engineers, Inc., 179 Wn.2d 84, 98, 312 P.3d 620 (2013). 

### 16JdL at 92. 17jd. (emphasis added). 

### 18 See Austin v. Ettl, 171 Wn. App. 82, 87 n.6, 286 P.3d 85 (2012) (splitdecision 

### concluding that Form 17 is not part of a real estate contract). 19 See RAP 9.2; Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988)20 Clerk's Papers at 35. 21 Clerk's Papers at 33.No. 69051-5-1/7 maintain the disputed property, and that she represented that her property extended all the way to the Youngs' driveway. Forthe first time in his response to Smith's motion for summaryjudgment, Colvin mentioned that Smith answered "Don't know" to a question regarding encroachments on the seller disclosure form. He then argued for the first time that "Smith's fraudulent concealment of her encroachment is an independent duty" beyond the parties' 

### contract.22 Smith argued in her reply brief that the complaintdid not state a claim for
fraudulent concealment. On appeal, Colvin's claim continues to be a moving target. He initiallydescribed his claims as "theories of Intentional and Negligent Misrepresentation" that rested, in 

### part, on an answer inthe sellerdisclosure formthatwas not mentioned in his pleadings below.23 Inthe argument portion of his brief, however, Colvindescribed his claim as "Smith's fraudulent concealment of her encroachment" by building "part of [her] 

### residence on property that purportedly belongs to another."24 In her respondent's brief, Smith expressed understandable confusion as to the precise nature of Colvin's claim and noted its ongoing transformation. Smith repeated her argumentthat Colvin's 

### complaint failed to state a claim forfraudulent concealment. Colvin did not respond to 

### this argument in hisreply brief.25

22 Clerk's Papers at 14. 

### 23 The question was "Do you have legal authority to sell the property?" Smith answered "Yes." Clerk's Papers at 50. 24 App. Br. at 10. 

### 25 Although we need notdecide this issue, Colvin's complaint arguably fails to 

### plead facts supporting a claim of fraudulent concealment. Fraudulent concealment can be pleaded either byaffirmatively pleading the nineelements of fraud, Baertschiv. Jordan, 68 Wn.2d 478, 482, 413 P.2d 657 (1966), or pleading the breach ofanNo. 69051-5-1/8 It is well settled that "[w]ewill not review an issue, theory, argument, or claim of 

### error not presented at the trial court level."26 Norwill we consider arguments that are inadequately briefed.27 Withrespectto the nature of his claims and the adequacy of his complaint, Colvin's briefing on appeal violates the spirit, if not the letter, ofthese rules. The thoroughness ofthe briefing and the record are particularly important when, as 

### here, the issues on appeal involve an evolving and unsettled area ofthe law. Given the deficient record and briefing on appeal, Colvin fails to establish a basis 

### forrelief.28 Smith's requestfor costs on appeal under RAP 14.2 is granted, but her requestforfees is denied because the alleged contractual basis forfees is not in the
record.Affirmed.

WE CONCUR: 

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affirmative dutyto disclosematerial facts thatwould not be disclosed by a careful, reasonable inspection. Jackowski v. Borchelt, 174Wn.2d 720, 739, 278 P.3d 1100 (2012): Eastwood v. Horse Harbor Found., 170 Wn.2d 380, 391, 241 P.3d 1256(2010). 

### The complaint arguably satisfies neither alternative. 26 Lindblad v. Boeing Co., 108 Wn. App. 198, 207, 31 P.3d 1 (2001); see also 

### Behnke v. Ahrens, 172 Wn. App. 281, 295, 294 P.3d 729 (2012) (summary judgment); RAP 9.12; RAP 2.5(a). 27 Norcon Builders. LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011). 

### 28 In lightof ourdisposition, we do not reach Smith's alternative bases for 

### affirming summaryjudgment, including the statute oflimitation andcollateral estoppel.

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