### FILED 

### May 5, 2016 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHING TON DIVISION THREE ZURIEL, INC., a Washington corporation; EDWARDD. OCHOA, Jr., Respondents,
v. DANGALBREATH and JANEDOE ) ) ) ) ) ) ) ) GALBREATH, husband and wife; ) DOUBLE UP RANCH, INC., a ) Washington Corporation; GREG ) GALBREATH andJANEDOE ) GALBREATH, husband andwife; 82 ) FARMS, INC., a Washington Corporation, ) Appellants. ) ) No. 32935-6-111

UNPUBLISHED OPINION

KORSMO, J. -Respondents leased farmland to growpotatoes withoutbeingtold that appellants hadtreatedthe field with anherbicidethatrenderedthe landunsuitable for potato farming. We affirmthejury'sverdict in favor ofthe lessees. FACTS Amongtheir 6,000 acres offarm holdings, cousins Dan and Greg Galbreath and theirrespective corporations (collectively Galbreath) hold a 20year lease on480 acres belongingtothe AhemFamilyRevocable Trust. Since acquiringthat lease in2003, the 

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No. 32935-6-III Zuriel v. Galbreath
Galbreaths have subleased portions ofthe 480 acres to Edward Ochoa, his father, and their corporation (collectively Ochoa). In 2012 the Galbreaths leased 130 acres ofthe Ahern property to Ochoaknowing that the Ochoas intended to r~ise potatoes. Dan Galbreath told Mr. Ochoathat the land would be good for potatoes. He apparently did not remember that his cousin had treated the 130 acre segmentwith Clopyralid when growing wheat on that field the previous year. The herbicide's producerhad warned users against growingpotatoes for 18 months in any field treated with Clopyralid. The potatoes were planted butthe crop soon developed visible deformities. The Washington State Department ofAgriculture (WSDA) investigated and took soil samples. WSDA found significant Clopyralid contamination in all ofthe samples, as well as some Picloram and Triclopyr contamination in two samples. Because ofthe Clopyralid contamination, the entire crop was unmarketable and the WSDA embargoed it. Ochoa filed suit against Galbreath on a theory ofnegligent misrepresentation based on Dan Galbreath's statement that the field was good for potatoes and his failure to disclose the herbicide application. The Galbreaths presented expert testimony thatthe concentration ofClopyralid was too high given the amount they had used, leading their expert to believe there must have been an additional source ofcontamination. At the close ofthe testimony, the trial court directed a verdict for the plaintiffs on the issue of liability, but instructed thejury on questions ofcausation and damages. The court denied 2 

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## fNo. 32935-6-111 Zuriel v. Galbreath

a defense request to give instructions concerning federal regulations governing Clopyralid, Picloram and Triclopyr contamination. Thejury entered a verdict in favor ofthe Ochoas for $584,558.94. The Galbreaths timely appealed to this court. ANALYIS The Galbreaths present two issues in this appeal. They first contend that the trial court erred in directing a verdict on liability. They also contend that the court erred in denying their requested instructions. We address the two issues in the order stated. Directed Verdict on Liability Galbreath claims that the doctrine ofcaveat emptor applies, requiring that Ochoa showhe had actual knowledge ofthe contamination. We disagree. This court reviews de novo a decision on a motion for a directed verdict. Schmidt
v. Coogan, 162 Wn.2d 488, 491, 173 P.3d 273 (2007). A directed verdict must be granted where, viewing the evidence most favorably for the nonmoving party, the court can say that there is not substantial evidence or areasonable inference to sustain a verdict for the nonmoving party. Davis v. Microsoft Corp., 149 Wn.2d 521, 531, 70 P.3d 126 (2003). A party is liable in fraud where he knows his statements to be false and intends to deceive the otherparty, and liable in negligence where his statements are innocently made but without due care as to theirtruthfulness or accuracy. See Brown v. Underwriters at

3No. 32935-6-III Zuriel v. Galbreath Lloyd's, 53 Wn.2d 142, 145-153, 332 P.2d 228 (1958) (discussing the histories ofand differences between fraud and negligent misrepresentation). The elements ofa claim ofnegligent misrepresentation that a plaintiffmust establish are: (1) the defendant supplied information for the guidance ofothers in their business transactions that was false, (2) the defendant knew or should have known that the information was supplied to guide the plaintiffin his business transactions, (3) the defendant was negligent in obtaining or communicating the false information, (4) the plaintiffrelied on the false information, (5) the plaintiffsreliance was reasonable, and (6) the false informationproximately caused the plaintiffdamages. Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007). This version ofthe tort requires that the defendant affirmatively made an actual misrepresentation. A second version ofthe tort exists when the defendant fails to disclose material information. The failure to disclose establishes negligent misrepresentation when the party owes a duty to disclose. Van Dinter v. Orr, 157 Wn.2d 329, 333, 138 P.3d 608 (2006). This duty arises in several circumstances, including: (1) the existence ofa fiduciary relationship, (2) disclosure is necessary to prevent an incomplete statement from being misleading, (3) the facts are within the knowledge ofone party and not easily ascertained by the other, (4) one party relies on the superior specializedknowledge ofthe other, or (5) one party lacks business experience and the otherwould gain an unfair advantage by remaining silent. 

### Id. at 334.

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No. 32935-6-III 

### Zuriel v. Galbreath
Ochoapursued both theories ofnegligent misrepresentation at trial. The trial court did not identify which theory it relied on in granting the directed verdict. Since the record clearly establishes that Dan Galbreath made the false statement that the field was good for potatoes, and that statement suffices to support the directed verdict, we need only discuss the affirmative misrepresentation theory. Initially, however, we note that the Galbreaths confuse the two theories by asserting that caveat emptor mandates thatplaintiffs show actual knowledge in orderto establish a claim. The authority they cite involved a claim offraud rather than negligence. 

### See Burba v. Harley C Douglass, Inc., 125 Wn. App. 684, 697-698, 106 P.3d 258 (2005). They do not cite, and we have not found, any authority to support an argument that actual knowledge is necessary in a claim ofaffirmative misrepresentation. The issue then was whetherthe Dan Galbreath statement supported the decision to direct a verdict on the question ofliability. 

### It did. Galbreath knew that Ochoa desired to lease the 130 acres in order to plant potatoes. He provided the information in orderto help guide Ochoa into signing the lease. He negligently communicatedthe false information by not remembering or investigating his own previous use ofthe field the year before; ifhe had checked with his cousin he would have remembered that the field could not be used for potatoes that year. Ochoarelied on the information, and did so reasonably given that Galbreath himselfwas a veteran potato farmer who also worked that land. 

### 5No. 32935-6-III Zuriel v. Galbreath
The Galbreath statement satisfied the five elements that establish the liability prong ofthe negligent misrepresentation tort. They essentially were uncontested. The trial court understandably directed the verdict for the plaintiffs on liability and leftthe question ofproximate cause (as well as damages, ifnecessary) for thejuryto decide. The trial court did not err in directing the verdict on liability in favor ofOchoa. JuryInstructions Galbreath also argues that the trial court erred in failing to give theirrequested instructions that federal lawprohibited the sale ofpotatoes containing traces ofthe other two herbicides found in the Ochoas potato field. 1 The trial court correctly recognized that the information could only be used with respect to the defendant's intervening cause argument and was irrelevant to the liability issue. The trial court did not abuse its broad discretion in this area. Well settled law governs ourreview of jury instruction issues. Jury instructions
are sufficient ifthey correctly state the law, are not misleading, and allow the parties to argue theirrespective theories ofthe case. State v. Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403 (1968). The trial court also is granted broad discretion in determiningthe wording and number of jury instructions. Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230 (1983). Discretion is abused when it is exercised on untenable grounds or for

1They do not assign errorto the failure to give the Clopyralid instruction. 6

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No. 32935-6-III 

### Zuriel v. Galbreath
untenable reasons. 

### State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A party is entitled to have its theory ofthe casepresentedto thejury byproper instructions ifthere is any evidence to support it. 

### DeKoningv. Williams, 47 Wn.2d 139, 141, 286 P.2d 694 (1955). However, it is not entitled to instructions that are irrelevant to the issues upon which the case is tried. 

### Poston v. W DairyProds. Co., 179 Wash. 73, 88, 36 P.2d 65 (1934). Here, the instructions were irrelevant to the issue ofliability because Ochoanever claimedthat the presence ofany ofthe three herbicides was the basis for the negligent misrepresentation. Rather, it was the false statement concerning the condition ofthe field that was the basis for liability. Galbreath's application ofthe Clopyralid was evidence that he should have known thatthe land was unfit to use, butwas not itselfa basis for liability. The presence ofotherherbicides than the onethat led WSDAto embargo the entire crop was a matter for thejuryto considerwhen considering causation. Thejury
was properly instructed on superseding cause. Clerk's Papers at 302. The courthad a very tenable basis for declining to give the instructions since they
were not useful to thejury. The evidence ofthe other herbicides was relevantto Galbreath's causation defense and was properly argued to thejury in conjunction with the superseding cause instruction. There was no need for the additional instructions. Thejudgmentis affirmed.

7No. 32935-6-111 Zuriel v. Galbreath
A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR: 

# £2dLJ[,LJ. • (]__ Siddoway, 

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Lawrence-Berrey, A.CJ 

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