IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HPEP, LLC a Washington limited

liability company,

 Plaintiff,

v. 

QIAN MENG, an individual,

 Defendant.

_______________________________

QIAN MENG, an individual, 

 Appellant,

v.

RODNEY OLSON and JANICE OLSON,

and their marital community,

 Defendants,

ELLEN WANG and JOHN DOE WANG, 

and their marital community; and

COMPASS WASHINGTON, LLC, a

Washington limited liability company,

 Respondents.

 No. 83882-2-I

 DIVISION ONE

UNPUBLISHED OPINION

COBURN, J. — This case involves a dispute between residential property seller, 

Qian Meng, and her realtor, Ellen Wang. Meng sought the disgorgement of Wang’s 

commission earned by selling Meng’s property because Wang breached various 
No. 83882-2-I/2

2

statutory duties under the Broker’s Act, ch. 18.86 RCW. Because Meng did not incur 

any damages, we affirm the trial court’s decision following a bench trial not to disgorge 

her commission. We also affirm the trial court’s award of reasonable attorney fees to 

Wang.

FACTS

In 2020, Ellen Wang, a real estate agent representing Compass Washington, 

LLC (Compass), and Qian Meng had known each other since 2016. Wang represented 

Meng in buying a home in Bellevue and again when Meng later bought another home 

(the property) in the Hunts Point neighborhood. Meng leased the property to a tenant. 

Due to the relatively high prices of the properties, the pool of potential buyers for real 

estate on Hunts Point is generally limited. And because of the nature of the properties, 

many sales of Hunts Point residential properties are “off market” transactions, meaning 

they are not listed on the public Multiple Listing Service (MLS). 

In June 2020, a potential confidential buyer through well-known real estate 

broker, Tere Foster, contacted Wang about the property. Wang notified Meng of the 

potential buyer to find out if she was interested in selling,1 which she was. Meng 

indicated that she wanted $9 or $9.5 million for the property but agreed to go up to $11 

million per Wang’s recommendation. When Foster conveyed her client might make an 

offer, Wang told Meng that Wang would represent her as a seller’s agent. 

On September 1, 2020, Wang drafted and signed a Form 1A Exclusive Listing 

Agreement (listing agreement). The listing agreement created an agency relationship 

 1 During the relevant time period of trying to sell the property, Meng was living in China. 

We mention this only to provide context that communication between Meng and Wang was from 

significantly different time zones. 
No. 83882-2-I/3

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between Meng and Wang2 and gave Wang the exclusive right to sell the property from 

the time it was executed until October 31, 2020. It also provided that Wang would be 

entitled to a 4 percent commission for procuring any sale within the listing period. A 

provision of the listing agreement committed Wang to list the property on the MLS by 

5:00 p.m. on September 1, 2020. The agreement also provided for reasonable attorney 

fees for the prevailing party in litigation to enforce the terms of the agreement. 

The parties disputed the circumstances surrounding the execution of the listing 

agreement. Wang testified that she was just attempting to create a broker/commission 

relationship for purposes of a private/off-market sale, she used the wrong form, and she 

had no intent to list the property on the MLS. Wang explained to Meng that they were 

anticipating an offer being presented shortly through Foster. 

Meng, however, testified that she believed Wang would list the property on the 

MLS as the language of the listing agreement provided despite the fact they anticipated 

an offer through Foster. 

Foster’s client initially expressed some interest in offering between $9.5 million 

and $11 million but eventually said they would not take any assignment of lease or 

holdover tenants, and thus would not be bringing an offer. 

Eleven days later, Rod and Janice Olson (collectively the Olsons) reached out to 

Wang about the property. The Olsons had lived in the Hunts Point area for many years 

and had owned several homes on the Hunts Point peninsula. They both had extensive 

experience in residential real estate transactions. The Olsons, who did not need an 

agent and represented themselves, understood that Wang represented Meng. The 

 2 For clarity, we refer to Wang and Compass collectively as “Wang.”
No. 83882-2-I/4

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Olsons told Wang they were interested in the property and would pay $10.8 million for it. 

Despite knowing at the time that Foster had not presented an offer, Wang told the 

Olsons that there was already an existing, pending offer at $11 million. The Olsons 

responded by drafting a real estate purchase and sale agreement (REPSA) for $11.2 

million that was signed by their attorney on their behalf. Wang bragged to Meng about

how Wang used a phantom competing offer:

And the price is 200,000 more! I lied to [the Olsons] that there is another 

buyer who would pay 11 million. In fact, [Foster] told me that her customer 

would be less than this price. She told him then don’t bother, that’s why I 

haven’t received the order from the other party.

However, after Wang procured the written $11.2 million offer, Meng told Wang 

that Meng’s ex-husband did not want to sell the property at all.3 The Olsons’ offer 

expired on September 15. As of September 18, the house was off the market and it 

was clear Meng did not intend to sell the property. Then about three weeks later, the 

evening of October 10, Meng sent a text to Wang explaining that she convinced her exhusband to sell the property. Meng asked if the potential buyers who made the last 

offer were still looking for a house. Within five hours, Wang had taken the Olsons’ last 

$11.2 million offer that was signed by their attorney, changed the expiration date from 

September 18 to October 11, and sent it to Meng. Wang did so without the 

authorization from either the Olsons or their attorney. Meng promptly signed the revised 

REPSA without question. 

 3 Although Meng was the sole owner of the property and her ex-husband continued to 

reside in China, Meng consulted with him frequently about real estate transactions including the 

sale that was the subject of this suit. Both Meng and her husband were real estate developers 

in China.
No. 83882-2-I/5

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The next morning, Wang called the Olsons to see if they were still interested in 

the property. Wang did not tell the Olsons or their attorney that Meng had signed this 

contract or was willing to agree to their previous $11.2 million offer. To motivate the 

Olsons to increase their offer, Wang used an email she had received from a young local 

brokerage to suggest there were others interested in the property. Wang already knew 

that this young broker did not have a buyer and suspected that the brokerage was 

trolling for information. 

The Olsons ultimately agreed to pay $11.5 million and had their attorney sign a 

new REPSA sent over by Wang. Wang then sent the signed offer to Meng, who signed 

it on October 11 without questioning why she received a new REPSA with a higher 

offer. Four days later, Wang sent Meng a seller representation agreement (SRA) 

confirming that Wang would receive the entire 4 percent commission for the sale to an 

identified buyer. The SRA did not require the property be listed in the MLS. Meng 

signed the SRA. Meng also agreed that the buyer would be HPEP, LLC (HPEP). The 

Olsons formed HPEP for the purpose of taking title to the property. 

After executing the agreement to sell her property but before closing, Meng saw 

a news story that the Olsons had sold their Hunts Point home for $60 million. Meng 

recognized Rodney Olson’s name in the article as the buyer of Meng’s property. 

Without any basis, Meng believed that if the Olsons had received $60 million for their 

property, then she should get more for hers.4 Meng turned to one of her other real 

 4 The Olsons’ home that sold for $60 million was a large property at the tip of Hunts 

Point Peninsula on Lake Washington. It was appraised at approximately $22 million. The $60 

million sale was an outlier and not a comparable sale. Meng’s property, selling at $11.5 million, 

sold higher than any other east-facing property. It was valued at $11.2 to $11.5 million on 

October 11, 2020 and appraised at $10.5 million on October 10, 2020.
No. 83882-2-I/6

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estate brokers, who advised Meng of various theories by which she might avoid having 

to fulfill her contract and on how she might use the threat of recession to obtain a higher 

price. 

Meng sent virtually identical letters to Wang and the title company in charge of 

closing the sale, explaining that she decided not to sell because the pandemic situation 

had caused her to reconsider her living situation, and she planned to move back and 

rebuild/remodel her house in the near future. The trial court found this to be an 

objectively untrue statement. Meng refused to sign any closing documents. 

HPEP brought suit against Meng for specific performance. Meng asserted 

affirmative defenses, counterclaims, and crossclaims against the Olsons, HPEP, and 

Wang. The court dismissed Meng’s counterclaims and affirmative defenses against the 

Olsons and HPEP at summary judgment. The court also dismissed, at summary 

judgment, Meng’s claim against Wang for lost profit damages arising from her failure to 

list the property on the MLS. The court explained,

Ms. Meng has failed to raise any genuine issue of material fact as to the 

price that her home would have fetched on the open market. The opinion 

of Richard Hagar fails to establish any metric by which the Court (or jury) 

could measure the value of Ms. Meng’s home on the open market. 

The remaining breach of contract claims and statutory and common law 

violations alleged by Meng against Wang were litigated in a bench trial. The trial court 

found that with respect to Meng, Wang breached her statutory duties under RCW 

18.86.030(1)(a) by failing to act with reasonable skill and care when she

1) Presented Meng with a Listing Agreement instead of a Separate Sale

Agreement in September 2020, then failed to comply with her contractual

obligations under the listing agreement that she had provided by failing to 

list the property between September 1, 2020 and September 18, 2020. 
No. 83882-2-I/7

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The Court also finds that no damages related to this breach have been 

proved.

2) Presented Meng with a forged [REPSA] on October 10, 2020. However, 

the Court also finds that no damages related to this breach have been 

proved.

The court also found,

Wang also breached her statutory duties under RCW 18.86.030(1)(c) by 

failing to present the SRA [REPSA] in a timely manner. However, the 

Court also finds that no damages related to this breach have been proved. 

The Court does not find that the failure to transmit information concerning 

Emily Tachell’s phishing inquiry constituted a breach of RCW 

18.86.030(1)(c).

The trial court found that the evidence at trial did not establish any failure to deal with 

Meng honestly and in good faith. The court additionally found that the evidence did not 

establish a failure to disclose material facts with respect to Meng, or that Wang, with 

respect to Meng, had engaged in any unfair deceptive act or practice. 

The trial court granted HPEP’s request for specific performance. The court also 

dismissed all of Meng’s third-party claims against Wang: breach of statutory duties 

under RCW 18.86.030 and RCW 18.86.40; violation of RCW 19.86 (Consumer 

Protection Act); breach of contract; fraud; and conspiracy to defraud.

The court concluded that Wang exclusively represented Meng and was not a 

dual agent. The court also concluded that brokers do not owe common law fiduciary 

duties and only owe statutory duties listed in chapter 18.86 RCW. The court concluded 

that to recover for a breach of a statutory duty, an injured party must demonstrate both 

cause in fact and legal causation, and that Meng’s failure to establish causation or 

damages was fatal to her breach of a statutory duty claim. Thus, the court rejected 

Meng’s request for disgorgement of Wang’s commission. The court also denied Meng’s 
No. 83882-2-I/8

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request for equitable indemnity, noting that she did not plead a cause of action for 

equitable indemnification.

The trial court also granted attorney fees and costs from Meng to Wang because 

Wang was the prevailing party under the terms of the listing agreement and SRA. 

Meng appeals. 

DISCUSSION

Findings of Fact

As an initial matter, Meng first contends that findings of fact 172 and 173 are 

actually conclusions of law unsupported by the evidence. We disagree that the 

challenged portions of findings 172 and 173 are conclusions of law, but agree that they 

are not supported by the evidence.

“Findings of fact are determinations of whether . . . evidence show[s] that 

something occurred or existed.” (alteration in original) (internal quotation marks omitted) 

Casterline v. Roberts, 168 Wn. App. 376, 382, 284 P.3d 743 (2012). A determination 

made by a trial court through the process of legal reasoning from the significance of 

evidentiary facts is a conclusion of law as opposed to a finding of fact. Moulden & 

Sons, Inc. v. Osaka Landscaping & Nursery, Inc., 21 Wn. App. 194, 197 n.5, 584 P.2d 

968 (1978). A finding of fact that is actually a conclusion of law will be treated as a 

conclusion of law and will stand if other findings of fact suffice to support such a 

conclusion. George E. Miller Lumber Co. v. Holden, 45 Wn.2d 237, 245, 273 P.2d 786 

(1954). Conclusions of law, however characterized, are reviewed de novo. Hegwine v. 

Longview Fibre Co., 132 Wn. App. 546, 556, 132 P.3d 789 (2006) (“We review

conclusions of law erroneously labeled as findings of fact de novo.”). We treat 
No. 83882-2-I/9

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unchallenged findings as verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 

P.3d 489 (2003).

Finding of fact 172 provided, “The evidence at trial did not establish any civil 

conspiracy or a failure to deal (with Meng) honestly and good faith.” And finding of fact

173 stated, “The evidence did not establish a failure to disclose material facts. The 

evidence did not establish that with respect to Meng, Wang had engaged in any unfair 

or deceptive act or practice.”

Whether Wang failed to deal with Meng honestly as well as whether evidence 

showed that Wang engaged in a deceptive act are factual determinations. The court 

made these determinations based on whether evidence supported them, and it did not 

utilize legal reasoning in order to determine them. Meng contends these findings of fact 

are incorrect, arguing that the court’s additional unchallenged findings show that Wang 

was dishonest and deceptive with Meng. We agree that the evidence and the court’s 

unchallenged findings contradict findings 172 and 173.

First, through finding of fact 170(2), the court found that Meng “[p]resented Meng 

with a forged [REPSA] on October 10, 2020.” Second, through finding of fact 96, the 

court found that “she falsely lead [sic] her client, Meng, to believe that the Olsons ([their 

attorney]) had signed a contractual offer to purchase the property.” The court’s

unchallenged findings establish that evidence did support that Wang was dishonest with 

Meng and engaged in deception with her. To find otherwise in findings 172 and 173 

was error.

However, we disagree with Meng regarding the trial court’s finding about Wang’s 

failure to disclose material facts. Meng’s entire argument rests on the fact Wang did not 
No. 83882-2-I/10

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disclose to Meng that she never listed the home, which was required under the listing 

agreement. 

Meng first argues that the court orally ruled that Wang failed to disclose material 

facts. That is incorrect. The court did not orally conclude that Wang failed to disclose 

material facts. The court found that Wang was under a statutory obligation to disclose 

all existing material facts,5 and also found that Wang did not list the property as she 

agreed to do in the listing agreement. But the court did not conclude orally or in its 

written findings and conclusions that such failure to do so was material. The court 

found that many Hunts Point residential properties are sold “off market,” meaning they 

are sold privately without being listed publicly on the MLS. It was the initial contact from 

a potential buyer that caused Wang to enter into the listing agreement with Meng. 

Wang continued to pursue potential buyers, including securing one who paid over 

Meng’s asking price. Meng does not assign error to the court’s dismissal of her claim 

against Wang for lost profit damages arising from her failure to list the property on the 

MLS. Meng fails to present any argument as to how not listing the property was a 

material fact. 

Instead, Meng focuses her argument on the deceptive acts Wang engaged in 

with the Olsons.

6 But failing to disclose Wang’s lies to the Olsons is not failing to 

disclose a material fact to Meng. In fact, Wang’s lies to the Olsons resulted first in an 

 5 It appears the judge inadvertently referenced “RCW 26.030(1),” when it is evident from 

the context that the judge intended to refer to the statutory duties listed in RCW 18.86.030(1).

6 Meng cites to the court’s findings that Wang lied to the Olsons, altered the Olsons’ 

original offer without obtaining their authorization, failed to tell the Olsons that Meng signed the 

altered (and thus unenforceable) offer, lied to the Olsons about a separate offer to obtain a 

$300,000 increase in their prior offer, and used an email from another realtor to motivate the 

Olsons to increase their offer. 
No. 83882-2-I/11

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increase of their first offer from $11 million to $11.2 million, and then later increasing to 

$11.5 million, which Meng accepted. It would be incredulous for Meng to suggest that 

Wang’s failure to disclose to the Olsons that she had lied was material as to Meng when

it was Meng who wanted to rescind the sale despite receiving a higher offer because of 

Wang’s deception. We affirm the trial court’s finding that evidence did not establish a 

failure to disclose material facts to Meng. Though the court erred in its findings of fact 

172 and 173, the error was harmless.

Disgorgement of Wang’s Commission

Meng contends that because the trial court determined that Wang breached her 

statutory duties under RCW 18.86.030(1), it should award disgorgement of Wang’s 

commission to Meng. We disagree.

RCW 18.86.030 provides a list of the duties of brokers owe their principal.7 The 

court concluded that Wang breached her statutory duties under RCW 18.86.030(1)(a) 

 7 (1) Regardless of whether a broker is an agent, the broker owes to all parties to 

whom the broker renders real estate brokerage services the following duties, 

which may not be waived:

(a) To exercise reasonable skill and care;

(b) To deal honestly and in good faith;

(c) To present all written offers, written notices and other written 

communications to and from either party in a timely manner, regardless of 

whether the property is subject to an existing contract for sale or the 

buyer is already a party to an existing contract to purchase;

(d) To disclose all existing material facts known by the broker and not 

apparent or readily ascertainable to a party; provided that this subsection 

shall not be construed to imply any duty to investigate matters that the 

broker has not agreed to investigate;

(e) To account in a timely manner for all money and property received 

from or on behalf of either party;

(f) To provide a pamphlet on the law of real estate agency in the form 

prescribed in RCW 18.86.120 to all parties to whom the broker renders 

real estate brokerage services, before the party signs an agency 

agreement with the broker, signs an offer in a real estate transaction 

handled by the broker, consents to dual agency, or waives any rights, 
No. 83882-2-I/12

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and (1)(c). The court’s findings also support a violation of RCW 18.86.030(1)(b) 

because Wang did not always deal honestly with Meng as discussed supra. 

We review the legal standard of recovery de novo. Falcon Prop., LLC v. Bowfits 

1308, LLC, 16 Wn. App. 2d 1, 8, 478 P.3d 134 (2020) (citing Young v. Young, 164 

Wn.2d 477, 483, 191 P.3d 1258 (2008)). Effective January 1, 1997, chapter 18.86 

RCW, known as the Broker’s Act, established statutory duties that superseded the 

fiduciary duties of an agent to a principal under the common law. Beauregard v. Riley, 

9 Wn. App. 2d 248, 255, 443 P.3d 827 (2019).

It is settled law that the vehicle for recovery for a breach of statutory duties under 

chapter 18.86 RCW is through common law tort. Falcon, 16 Wn. App. 2d at 8 (citing 

Jackowski v. Borchelt, 174 Wn.2d 720, 735, 278 P.3d 1100 (2012)). “To demonstrate 

that the defendant’s breach was the proximate cause of the plaintiff’s injury, the plaintiff 

must demonstrate both cause in fact and legal causation.” Beauregard, 9 Wn. App. 2d 

at 255 (citing Boguch v. Landover Corp., 153 Wn. App. 595, 610, 224 P.3d 795 (2009)).

 

under RCW 18.86.020(1)(e), 18.86.040(1)(e), 18.86.050(1)(e), or 

18.86.060(2) (e) or (f), whichever occurs earliest; and

(g) To disclose in writing to all parties to whom the broker renders real 

estate brokerage services, before the party signs an offer in a real estate 

transaction handled by the broker, whether the broker represents the 

buyer, the seller, both parties, or neither party. The disclosure shall be set 

forth in a separate paragraph entitled “Agency Disclosure” in the 

agreement between the buyer and seller or in a separate writing entitled 

“Agency Disclosure.”

(2) Unless otherwise agreed, a broker owes no duty to conduct an 

independent inspection of the property or to conduct an independent 

investigation of either party's financial condition, and owes no duty to 

independently verify the accuracy or completeness of any statement 

made by either party or by any source reasonably believed by the broker 

to be reliable.
No. 83882-2-I/13

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Meng does not challenge the court’s conclusion that Meng failed to establish lost 

profits as damages, but argues that Wang’s commission itself is damage. Meng cites 

no supporting authority for this proposition. When a party does not cite to supporting 

authority, we assume there is none. Kirby v. Dep’t of Emp’t Sec., 185 Wn. App. 706, 

728, 342 P.3d 1151 (2014). Nor does Meng attempt to present any argument 

explaining how Wang’s statutory breaches as to Meng caused her harm by having to 

pay Wang’s commission. The commission is what Meng was contractually obligated to 

pay under the SRA, which flowed from the REPSA executed on October 10 for $11.5 

million. 

Meng next argues without any supporting authority that the commission should 

be disgorged under a general theory of “equity” based on the statutory breaches.8 

Meng contends she raised this argument by requesting in her amended third-party 

complaint that Wang be enjoined from seeking or recovering any commission or other 

monetary relief due to her breaches of statutory duties. While Meng requested relief in 

her amended third-party complaint to include enjoining Wang from seeking or 

recovering any commission or other monetary relief in connection with the property, she 

did not specify that this was based on breaches of statutory duties. 

All of the conduct related to the statutory violations flowed from the listing 

agreement and the unauthorized revised October 10 REPSA for $11.2 million, while 

Wang’s commission was based out of the SRA. As the court observed:

 8 Despite the trial court’s election to address how Meng also cannot recover under an 

unjust enrichment theory, Meng never pleaded or argued a theory of unjust enrichment at trial or 

on appeal. And, as the trial court pointed out, Meng did not plead equitable indemnity. Meng 

does not assert equitable indemnity on appeal. Meng maintains that its request for equitable 

remedies is different from equitable indemnity. 
No. 83882-2-I/14

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Meng signed the $11.5 million offer on October 11, 2020 (Pacific Time.) 

She signed and initialed the full Residential Real Estate Purchase and 

Sale Agreement, and all addenda (the [property contract]) at least 22 

times, on nearly each page of the contract. This Court concludes that 

Meng made the decision to sell the [Property] and signed the [Contract]

voluntarily. No one forced her to sign the contract. She was happy with the 

purchase price and her windfall of an additional $300,000.

Setting aside the fact Meng cites to no authority to support her general equitable 

remedy theory, Meng has not presented any arguments as to why, under these facts, it 

would be equitable to have Meng keep the entire $11.5 million that Wang helped secure 

under the agreement through which Wang would be paid a 4 percent commission. 

Meng’s general equitable theory would allow sellers or buyers to disgorge the 

commission of their own agents for minor statutory violations that do not cause injury—

even when the agents successfully secure a purchase and sale agreement to the 

benefit of their principal.9 

Because disgorgement of Wang’s commission is not an available remedy when 

there are no damages, we affirm the trial court’s denial of Meng’s request for 

disgorgement of Wang’s commission.

 9 At oral argument Meng contended that disgorgement for statutory violation without 

having to prove damages is supported by Restatement (Second) of Agency § 401 (Am. Law 

Inst. 1958). Wash. Court of Appeals oral argument, HPEP, LLC, v. Qian Meng, No. 83882-2-I 

(April 13, 2023), at 19 min., 45 sec., video recording by TVW, Washington State’s Public Affairs 

Network, https://www.tvw.org/watch/?clientID=9375922947&eventID=2023041160. However, 

Meng only made passing reference to the Restatement in her brief when she cited Meerdink v. 

Krieger, 15 Wn. App. 540, 545, 550 P.2d 42 (1976) (“An agent is subject to liability for any loss 

to the principal arising from breach of duty” (citing RESTATEMENT § 401).” We need not address 

this argument further. See RAP 10.3(a)(6) (requiring an appellant’s brief to provide “argument 

in support of the issues presented for review, together with citations to legal authority and 

references to relevant parts of the record”); see also Jackson v. Quality Loan Serv. Corp., 186 

Wn. App. 838, 845, 347 P.3d 487 (2015).
No. 83882-2-I/15

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Attorney Fee Award to Wang

Meng also contends that the court improperly concluded that Wang was the 

substantially prevailing party for purposes of attorney fees. We disagree.

We review de novo whether there is a legal basis for awarding attorney fees by 

statute, under contract, or under a recognized ground. Falcon, 16 Wn. App. 2d at 11. A 

prevailing party may recover attorney fees under a contractual fee-shifting provision 

only if a party brings a “claim on the contract,” or in other words, only if a party seeks to 

recover under a specific contractual provision. Boguch, 153 Wn. App. at 615. If a party 

alleges breach of a duty imposed by statute, the party does not bring an action on the 

contract, even if the duty would not exist in the absence of the contractual relationship. 

Id. (citations omitted).

The trial court awarded Wang attorney fees under both the listing agreement and 

the SRA, which have the exact same fee-shifting provision:

In the event either party employs an attorney to enforce any terms of this 

Agreement and is successful, the other party agrees to pay reasonable 

attorneys’ fees. In the event of trial, the successful party shall be entitled 

to an award of attorneys’ fees and expenses; the amount of the attorneys’ 

fees and expenses shall be fixed by the court.

Additionally, RCW 4.84.330 provides that in any action on a contract, “where such 

contract . . . specifically provides that attorneys’ fees and costs, which are incurred to 

enforce the provisions of such contract. . . shall be awarded to one of the parties, the 

prevailing party. . . shall be entitled to reasonable attorneys’ fees.”

Meng first argues that because Wang breached the listing agreement, attorney 

fees should not have been awarded under that agreement. 
No. 83882-2-I/16

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If neither party wholly prevails, the determination of who is the prevailing party 

“depends upon who is the substantially prevailing party, and this question depends

upon the extent of the relief afforded the parties.” Riss v. Angel, 131 Wn.2d 612, 633, 

934 P.2d 669 (1997). Whether a party is a prevailing party is a mixed question of law 

and fact that this court reviews under an error of law standard. Emerick v. Cardiac 

Study Ctr., Inc., P.S., 189 Wn. App. 711, 732, 357 P.3d 696 (2015).

Here, Meng prevailed as to her claim that Wang breached the listing agreement 

by not listing the property. However, that breach was not a material breach and Meng

failed to prove damages, causing that breach of contract claim to be dismissed. Meng

claimed that the sale to HPEP was void and unenforceable because HPEP conspired 

with Wang to deceive Meng into agreeing to sell the property for less than its fair market 

value. As a remedy, Meng sought an order enjoining Wang from recovering any 

commission, which Meng agreed to under the SRA which flowed from the final REPSA. 

All of Meng’s claims against Wang were dismissed. Wang was the substantially 

prevailing party, and as such, the trial court did not err in awarding attorney fees to 

Wang as the prevailing party under the SRA.

Meng contends that Wang should not receive attorney fees because Wang

violated statutory duties under chapter 18.86 RCW. However, the court did not award 

attorney fees based on the statute. See Boguch, 153 Wn. App. at 615 (reversing an 

award of attorney fees based on common law and statutory duties of care rather than a 

claim on the contract). We note that the trial court determined that the fees and 

expenses that Wang incurred defending Meng’s extra-contractual claims are so 
No. 83882-2-I/17

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intertwined with the central, contract-based claims that the fees and costs could not be 

segregated. Meng does not challenge this finding on appeal.

Meng also argues for the first time on appeal that it is inequitable for Wang to be 

awarded attorney fees when she induced Meng to sign the SRA without disclosing its 

purpose or meaning to Meng. First, it is not altogether clear what Meng refers to by 

saying “disclosing its purpose and meaning.” Meng does not claim she did not 

understand that she was agreeing to pay Wang a 4 percent commission based on the 

sale of the property. Second, while Meng claimed below that Wang induced Meng to 

engage Wang as her broker and induced Meng to sign the REPSA,10 she did not claim 

that Wang induced Meng to sign the SRA. We decline to consider this waived 

argument. “As a general rule, appellate courts will not consider issues raised for the first 

time on appeal.” State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995).

Because we affirm the trial court’s award of attorney fees to Wang under the 

SRA, we need not address the trial court’s award of fees also under the listing 

agreement.

Attorney Fees on Appeal

Meng and Wang request attorney fees based on the attorney fees provision 

under the listing agreement, the SRA, or both. In general, this court recognizes a 

provision in a contract allowing attorney fees to include fees on appeal as well as at 

 10 See Meng’s amended answer, affirmative defenses, counterclaim and third-party 

complaint (“Wang’s and Compass’s unfair or deceptive acts or practices in the conduct of trade 

or commerce induced Meng to engage them as her brokers in order to enter into a transaction 

with [the Olsons].”); Meng’s opposition to Wang’s motion for summary judgment (“As a result of 

Wang’s inducement, Meng entered into the [REPSA] with the Olsons on October 11, 2020”); 

Meng’s trial brief (“Wang facilitated the Olsons’ purchase of the Property and induced Meng to 

execute the REPSA with her dual agency, omissions, and in light of her breaches of statutory 

duties.”). 
No. 83882-2-I/18

18

trial. Falcon, 16 Wn. App. 2d at 14 (citing Edmundson v. Bank of Am., NA, 194 Wn. 

App. 920, 932-33, 378 P.3d 272 (2016)). 

As discussed supra, Meng on appeal successfully corrects the trial court’s two 

findings of fact, which supports a determination that Wang was dishonest and engaged 

in deceit as to Meng in violation of a statutory duty to deal honestly with Meng. RCW 

18.86.030(1)(b). However, this does not result in a judgment in Meng’s favor. Meng 

failed to otherwise improve her position as to her other claims on appeal. 

We conclude that neither party substantially prevailed on appeal and deny all 

parties the request for attorney fees. See Falcon, 16 Wn. App. 2d at 14 (declining to 

award attorney fees on appeal when both parties prevailed in part). 

CONCLUSION

Though the trial court erred in finding that Wang did not engage in deceptive or 

dishonest practices with Meng, those findings contradicted the trial court’s other findings 

of fact as to how Wang was dishonest and engaged in deception as to Meng. These 

errors were harmless because statutory violations require an injured party to establish 

damages and Meng failed to do so. We affirm the trial court’s denial of Meng’s request 

to disgorge Wang’s commission. Because neither party substantially prevailed, we 

decline to award attorney fees to any party.

WE CONCUR: