### INTHE COURT OF APPEALS OF THE STATE OFWASHINGTON SERGEY SAVCHUK, a married man, Appellant,

STEVEN G. JERDE and DARLYCE J. JERDE, husband and wife and the marital community comprised thereof, Defendants, CHRISTINE SAMS and METRO REALTY, INC., Respondents. No. 68608-9-1 DIVISION ONE UNPUBLISHED OPINION

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JT O ZZ"'" " FILED: September3, 2013 Appelwick, J. — Savchuck appeals the summaryjudgment order dismissing his tort claims againsta real estate agentwho assisted him inthe purchase of real property. We affirm. FACTS 

### Sergey Savchuk emigrated from Kazakhstan in 1989. English is not his first language. Although he has learned conversational English, he does not always understand complicated or technical conversations and claims that his written understanding is worse than his oral understanding. Savchuk regularly purchases and develops real property in the United States. Because of his language limitations, he relies on professionals for some matters inthe
course ofbusiness. For instance, he relies on engineers and architects when obtaining building permits and on real estate agents when conducting real estate transactions.No. 68608-9-1/2 

### From 2003 through 2006, Christine Sams of Metro Realtywas one ofthosetrusted real estate agents. 

### In August 2006, Sams encouraged Savchuk to purchase a propertyin Ferndale owned by Steven and Darlyce Jerde. Savchuk was hesitant, because he did not think 

### he could get bank financing and had never worked on a deal requiring development of raw land through seller financing. Savchuk eventually decided to make an offer. The 

### Jerdes accepted Savchuk's offer to purchase the property for $910,000 and signed a real estate purchase and sale agreement (REPSA). That agreement provided for closing on December 18, 2006, a promissory note and deed of trust, and full paymentof the purchase price by August 31, 2007. But, after the investigation period, Savchuk elected notto goforward with the deal. 

### InJanuary 2007, Savchukexecuted a new REPSA, agreeing to pay $725,000for the property. The REPSA provided for title at closing which was to occuron August 31, 2007 or sooner as mutually agreed. Itprovided for a $20,000 earnest money payment, and stated thatforfeiture ofearnest money was the Jerdes' sole and exclusive remedy in the event that Savchuk failed to complete the purchase. The REPSA included two addenda concerning paymentterms. The form 22C payment terms addendum that was executed in October 2006, pursuantto the parties' first REPSA, was attached unamended. Itprovided: NOTE AND DEED OF TRUST. Buyer agrees to pay $525,000.00 down, including Earnest Money, at Closing and the balance of the Purchase Price to Seller in monthly installments of interest only on principal balance or more at Buyer's option, including interestfrom the date ofClosing atthe 

### rate of 7% per annum on theunpaid principal, on or before the 15thday of each month, commencing
... 30 days following the closing
.... ThisNo. 68608-9-1/3 

### indebtedness shall be evidenced by a Promissory Note and a . . . first position
. .. Deed ofTrust, as setforth below. Due Date. The entire balance of principal and interest shall be due and payable
... on 08/31/2007.


### Promissory Note. Buyer agrees to sign at Closing the NWMLS [(Northwest Multiple Listing Service)] Form 22M Promissory Note . . . and LPB Form 22 Deed ofTrust securing the Property, or an equivalentform, which must be attached to this Agreement. Second, a form 34 addendum/amendmentexecuted contemporaneously withthe 

### January 2007 REPSA was attached. The form 34 expressly waives the contingency feasibility,the onlycontingency inthe REPSA, and provides explicitpaymentterms: 1. Thefeasibility contingency is removed. 

### 2. $20,000 earnest money becomes a non-refundable deposit, to be disbursed to Sellers immediately. 3. Purchase price: $725,000 

### 4. Payment Terms: Note & Deed of Trust. Interest pmts to be paid monthly on unpaid balance, 7% interest. Contract administration by 

### Trust Accounting Ctr, Anacortes, WA, all costs associated paid by Buyer. Payments disbursed by TrustAccounting Ctr to Seller. 5. Principal payments as follows: $30,000 due 1/15/07 $50,000 due 2/1/07 $50,000 due 4/1/07 $50,000 due 6/1/07 $50,000 due 8/1/07 Due in full 8/31/07 

### 6. Closing date shall be on orbefore August31, 2007.

ALL OTHER TERMS AND CONDITIONS of said Agreement remain unchanged.No. 68608-9-1/4


### AllthatSavchukhad to do to close thetransactionwas make hispayments. TheREPSAattachmentsdid notinclude acompleted promissorynote or deed of trust. Savchukclaimsthat he understood that the REPSAwas supposed to closeupon 

### the tender of a note and deed oftrust, while Sams claimsthere was never anyintentto finance the sale with a note and deed oftrust. She asserts paymentwas supposed to be completed entirely by installment payments. 

### ByAugust 2007, the scheduled month of hisfinal installment payment, Savchuk 

### hadpaid $200,000. He was unable to come upwith the rest of the money, and either he or the Jerdes proposed an extension of the closing date. According to Savchuk, Sams was out ofthe country at the time and could not take part in negotiations. He claims that Sams instead advised him that the Jerdes' 

### agent, Anne Inman, would treathimfairly. Savchuknegotiated with Inman to extendthe 

### closing date an additional nine months to May 30, 2008, and Inman drafted the 

### extension agreement. Savchuk paid $10,000 to extend the closing date and ultimately signed a one page document that changed many terms from the REPSA. Itextended the closing date nine months: 

### Extension ofclosing date: The parties hereby agree to extend the closing date setforth inthe agreementuntil: May 30, 2008. It increased the interest rate: Beginning 9/1/2007, interest shall accrue on unpaid balance at a rate of 7.5%. Itpermittedthe Jerdes to retain the propertyfor 30 days afterclosing: Sellerretains possession up to 30 days afterclosing at no cost.No. 68608-9-1/5


### It provided a new payment schedule, and imposed an additional penalty on late payments: Buyerwill pay $250,000 on 8/31/07 and $25,000 on 9/7/07


### Payments of$25,000every othermonth, due the 1stof every month $25,000 due 10/10 [sic] /07, 12/1/07, 2/1/08, 4/1/08 and balance 5/30/08. Payments not made within 3 business days ofthe due date shall accrue a late penaltyof 5% ofthe paymentamount. 

### This shall apply for both principal and interestpayments due. Most significantly, itmade allpayments non-refundable: Allpayments are non-refundable inthe eventoffailure to close. 

### Savchukmade his lastpaymentinDecember2007, and did notcloseon May 30, 2008. Savchuk v. Jerde. noted at 158 Wn. App. 1022, 2010 WL 4277872, at *2. In 

### February 2009, he sued the Jerdes, seeking to recover his payments. ]d\ He alleged breach of contract and that the nonrefundable payment provision in the extension agreement was void as an unenforceable remedy. ]d. The trial court granted the 

### Jerdes' motion for summaryjudgment on the grounds that the nonrefundable payment provision was unambiguous and enforceable. Jd. On appeal, we concluded that Savchuk clearly breached the extension agreement by failing to make scheduled payments, but noted that the trial court did not address whether the nonrefundable payment provision was an unenforceable remedy. Id. at *3, 6. Specifically, we explained that such a provision could constitute a valid liquidated damages provision. Id. at *3-5. We remanded for the trial court to resolve issues of fact concerning whether the parties intended for the provision to be anNo. 68608-9-1/6


### estimate ofdamages inthe event ofdefaultand, ifso, whether the estimate of damages

was reasonable. Id. at *6. 

### On remand, Savchukfiled an amended complaint adding Sams and Metro Realty
as defendants (together, "Sams"). He alleged that Sams was negligent, breached her duties as a real estate agent, and violated the ConsumerProtection Act(CPA), chapter 19.86 RCW. Savchukand theJerdes ultimatelysettled. After Sams filed a motion for summary judgment, Savchuk submitted his own 

### declarations, and declarations by expert witnesses outlining the applicable standard of
care for attorneys and real estate agents. The trial court granted Sams's motion for summaryjudgmentand dismissed all ofSavchuk's claims. DISCUSSION We review summaryjudgmentorders de novo. Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is appropriate ifthere is no genuine issue as to any material fact and the moving party is entitled to judgment as a matterof law. jd. The facts and all reasonable inferences are considered in the light most favorable to the nonmoving party. Id, But, the nonmoving party cannot rely solely on the allegations in pleadings, on speculation, or on argumentative assertions that unresolved factual issues remain. White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997). We can affirm an order granting summaryjudgment
on any basis supported by the record. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027(1989).No. 68608-9-1/7 

### Savchuk claims he has identified numerous issues that preclude summary 

### judgment.1 Forinstance, hearguesthatseveralclaimsarisefromtheREPSAitself: [Sams still breached her] duties to Savchuk with respect to several of Savchuk's claims that arise out of the terms of the PSA itself[.] These include claims for: 1) negligence; 2) breach of the duty to exercise reasonable skill and care under RCW18.86.030(1)(a); 3) breach of a duty to deal honestly and in good faith under RCW 18.86.030(1)(b); 4) breach 

### of the duty to disclose material facts under RCW 18.86.030(1)(d); 5) breach of a duty to advise the buyer to seek expert advice on matters relating to the transaction that are beyond the agent's expertise under RCW 18.86.050(1 )(c); 6) breach of fiduciary duty; and 7) violation of the 

### ConsumerProtection [Act] in the drafting of the [RE]PSA and arising out of terms ofthe [RE]PSA. 

### Thus, [Sams] clearly owed Savchuk a duty with respect to most, if not all, [of] his claims asserted inthis matter. He similarly provides an extensive lists of alleged breaches of the duty to exercise reasonable skill and care: Specifically, Mr. Bjerke's Declaration opined that Sams breached her duty to Savchuk by: 1) failing to clarify the conflict between the Safe Harbor provision, limiting Savchuk's liability to his $20,000 earnest money deposit, and other provisions of the [REJPSA, including Forms 22C and 34, setting forth conflicting schedules of installment payments that might be viewed as nonrefundable; 2) failing to advise Savchuk that his liability 

### would be limited to the $20,000 earnest money inthe [RE]PSA, underthe Safe Harborprovision inthe [RE]PSA, even though Sams understood that 

### 1 We note that he intermittently refers to these issues as legal and factual matters. He refers to claims that he alleges survive summary judgment, without explaining what facts support the claims. He likewise provides lists of issues identified by his experts, but does not provide any analysis of how the expert's statements support his claims. These lists are not merely an outline of his arguments; in many instances they represent the meat of his argument. Further, he frequently fails to provide any support for the legal and factual assumptions underlying the expert's 

### opinions. The lists are often followed by block citations to as much as 50 pages ofthe record. That format fails to provide a specific reference to the record for each factual statementas required by RAP 10.3. Many ofthose legal assumptions are incorrect and thefactual assertions are not supported by the record.No. 68608-9-1/8 

### Safe Harbor provisions generally limit a seller's remedy to the earnest money deposits; 3) including language in the [RE]PSA under which a portion of the purchase price would be paid under a note and deed of 

### trust, without attaching any form note and deed of trust, and leaving the 

### provisions regarding the payment of the purchase price ambiguous; 4) failing to include terms in the [RE]PSA requiring the transfer of title to 

### Savchukinexchangefor a deed of trust, mortgage or real estate contract, or to advise Savchuk that the commonly accepted means by which a 

### buyer purchases property on an installment basis is such a security instrument; 5) failing to advise Savchuk that the sellers' retention of 

### $575,000 on a $750,000 purchase is inappropriate and probably unenforceable; 6) including provisions in the [RE]PSA permitting sellers' inappropriately to collect interest payments, even though the sellers' had not loaned Savchuk any money; 7) entering into an arrangement under which Sams received nonrefundable installment commission payments prior to closing and despite the fact that the transaction never closed, 

### without disclosing this arrangement to Savchuk; and 8) abandoning Savchuk and advising him to rely upon the adversary's agent's advice and counsel, rather than providing necessary input and advice with respect to the August Extension. Savchuk also argues that, at a minimum, reversal in part is warranted because Sams did not specifically address each of Savchuk's claims in her motion for summary judgment and the trial court did not have authority to dismiss claims not addressed. But, Sams sought "summaryjudgment dismissing the Second Amended Complaint" in its entirety. The motion touched on issues that supported dismissal of all claims. Moreover, his argument highlights the inherentconfusion in his enumerated claims. He asserts that Sams only addressed six claims in her motion for summaryjudgment, and failed to address three claims. That suggests he made nine claims in his complaint. But, his complaint contains only three counts against Sams, and those three counts are comprised oftwenty six separate points. He has not explained how he now arrives at the conclusions that Sams had to address nine separate claims. He also argues that 

### the motion for summaryjudgmentdid not address whether Sams violated herfiduciary duties, or her duties of reasonable skill and care, of loyalty, and to avoid conflicts of

8No. 68608-9-1/9


### interest. His complaint, in contrast, does not contain the phrases "fiduciary duties," "reasonable skill and care," "loyalty," or"conflicts of interest." He instead made general reference to negligence and enumerated duties under RCW 18.86.030, RCW 18.86.050, and chapter 18.86 RCW. 

### We address Savchuk's claims in the context ofduties allegedly violated prior to the execution of the January 2007 REPSA, and those that allegedly occurred after its execution. Summaryjudgmenton allclaimswas appropriate. I. Duties prior to the execution ofthe REPSA 

### Savchuk contends that the REPSA is "a crazy quilt of ambiguities and contradictions" and that numerous breaches of duty flow from that ambiguity. The agreement is not as hopelessly ambiguous as he suggests. The claims for breach of duty priorto the execution ofthe REPSAfail as a matterof law. A. Note and Deed ofTrust Savchuk argues that the REPSA created ambiguity concerning whetherthe deal
was supposed to close pursuant to a promissory note and deed of trust. He claims Sams violated her duties by failing to attach a promissory note and deed oftrust, and failing to include terms in the REPSA requiring the transfer of title in exchange for a 

### deed oftrust, mortgage contract, orreal estate contract.2 He claims that, but for her breaches instructuring the deal, hewould have been in a betterposition and could have made productive use ofthe property by renting or selling it.



### 2Although Savchuk mentions a mortgage contract and real estate contract, he only offers argumentconcerning a note and deed oftrust.No. 68608-9-1/10


### The REPSA executed in October 2006 contemplated a purchase price of 

### $910,000, with closing on December 18,2006. The attachedform 22Cpaymentterms addendum has several options for payment method. The parties checked the box for 

### "Note and Deed ofTrust." It states that Savchukwill make a $525,000 down payment at closing and with the entire balance ofprinciple and interest payable in full on August 31, 2007. Bycontrast the January 2007 REPSA "specific terms" form states that the purchase price is $725,000. Itthen lists attached addenda, which include form 34 and 

### "promissory note." The form 22C from the October 2006 deal, attached without 

### modification, requires payment in full by August 31, 2007. Form 34, executed in January 2007, explicitlydescribes the interest rate and payment schedule and changes the closing dateto "August31, 2007 or sooneras mutually agreed." Any apparent ambiguity created by reference to a note and deed oftrust which
were not attached is clarified by the actual terms ofthe agreement. Unless the parties agreed to close earlier than August 31, 2007, there was no need for or value to a promissory note and deed of trust. This is because under form 34 the debt was set to be paid in full at closing, on August 31, 2007. However, had Savchuk sought and obtained agreement to an earlier closing date, he was entitled to the statutory warranty deed, the Jerdes were entitled to a promissory note for the outstanding balance, and undoubtedly the Jerdes would have insisted on a deed of trust to protect themselves. The protection via deed of trust that Savchuk complains is missing was available, but only ifthe parties agreed to an earlierclosing date. And, although Savchuk asserts that he thoughtthe deal would close pursuantto a note and deed oftrust, he does not claim that he directed Sams to draft an offerthatexclusively required a note and deed oftrust.

10No. 68608-9-1/11


### He does not allege that the ambiguity makes the contract unenforceable. Since he did 

### not opt to close earlier than August31, neither the note ordeed of trust were necessary to the transaction. Any harm he alleges flows from his failure to request the earlier closing date, not referenceto unattached documents. B. Failure to Advise 

### Savchuk makes a variety of claims that rely on Sams's alleged failure to advise him ofthe contents ofthe REPSA. In particular, he claims that Sams failed to advise himthatthe deal could only close pursuantto a note and deed of trust. But,the deal did not have to close pursuantto a note and deed oftrust. Savchukdoes notestablish that 

### Sams had a duty to advise him how to perform the agreement after he executed it, including whetherto seekan earlierclosing date. Savchukalso argues thatSamsfailed to inform him that his liability was limited to forfeiture of his $20,000 earnest money deposit, and failed to advise him that the REPSA did not include a completed note or deed oftrust. The failure to advise him ofthe contents ofthe REPSA arguments are apparently based on the premise that he does not understand English very well and relied on Sams. But, he is merely alleging that Sams failed to inform him ofwhatwas in the contract, not that Sams made any affirmative statements that could supporta theory offraud or coercion. He is not seeking to invalidate the contract. He has not cited any authority that would allow us to disregard the content ofthe written agreement infavor ofwhat he alleges Sams failed to tell him. "The whole panoply ofcontract law rests on the principle that one is bound by the contract which he voluntarily and knowingly signs.'" Skagit State Bank v. Rasmussen, 109 Wn.2d 377, 381, 745 P.2d 37 (1987) (quoting Nat'l Bank v. Eguitv Investors. 81 Wn.2d 886, 912-13, 506 P.22d 20 (1973)).

11No. 68608-9-1/12 

### Where a party has ample opportunity to examine a contract inas great a detail as he cares, "he cannot be heard to deny that he executed the contract, and he is bound by 

### it." Lake Air. Inc. v. Duffy. 42 Wn.2d 478, 480, 256 P.2d 301 (1953). The REPSA clearly limited Savchuk's exposure to the $20,000 earnest money deposit, clearly contemplated installment payments withthe balance due infull by closing, and clearly permitted closing without a note and deed of trust. Savchuk cannot succeed by asserting that Sams did not orally relay each provision inthe contract. C. Refundabilitv Savchuk argues that Sams violated her duties because the REPSA does not clarify the difference between the earnest money deposit and the scheduled payments. He claims that the Jerdes' remedies were limited to Savchuk's earnest money deposit, but that the agreement makes it ambiguous whether Savchuk's subsequent payments
were refundable. He fails to explain what in the agreement makes itambiguous. The January 2, 2007 REPSA clearly states, in multiple places, that the earnest money deposit is nonrefundable. Itfurther provides thatforfeiture ofearnest money is the "sole and exclusive" remedy inthe event ofdefault. Thus, keeping the installment payments


### was not an available remedy. Savchuk even asserts that, "[a]mple evidence supported the conclusion that Savchuk neither knew nor understood thatthese additional deposits 

### would be nonrefundable." Savchuk had it right. The payments were refundable and there is nothing inthe REPSAthat suggests otherwise. D. Expert Advice 

### Savchuk argues that Sams had a duty to advise Savchuk to seek expert advice from an attorney, because an attorney would have advised Savchuk to make the

12No. 68608-9-1/13


### installmentpaymentsrefundable and because risks of the deal's structurewerebeyond Sams's expertise. But, we disagreewith Savchuk'slegal conclusion that thepayments could be viewed as nonrefundable. And, despite Savchuk's protestations that the REPSA presented unusual risks, the risks were known. The October 2006 REPSA 

### contained a feasibility contingency, which entitled Savchukto breakthe contractwithout 

### losing anything. After he waived the feasibility contingency in January 2007, his exposure for breaking the contract remained limited to forfeiture of his $20,000 earnest money deposit. E. Commissions 

### Savchuk argues that Sams breached her duties by accepting commission payments as Savchuk made his installment payments, instead of as a bulk sum at closing. He claims that if he had known that Sams was set to receive commission payments as he made payments, he would have become suspicious and would not have signed the REPSA without obtaining further advice. He relies on an expert witness's opinion thatthe arrangementwas improper because itimproperly incentivized Sams to push for closing irrespective of Savchuk's best interests. But, both Savchuk's and his expert's statements are based on the unsupported assertion that Sams was receiving nonrefundable commissions, was setto receive them prior to execution ofthe REPSA, and knew that fact. There are only two documents in the record that address commission payments. An "optional clauses" addendum executed in October 2006 states that the listing office will receive a 4 percent commission and the selling office, Sams, would receive a 2.5 percent commission. The commission would be paid by the Jerdes. Another document, form 90 notice, signed in December 2006, states that the

13No. 68608-9-1/14 

### commissions "shall bedisbursed from escrow (priortoclosing) perpaymentschedule." Neither referencestates that the commission payments are nonrefundable. Savchuk's 

### legal assertion that thepayments were nonrefundable isnot supported by therecord. Further, Savchuk's expert based hisopinion on his statement that Sams "contractedfor, 

### andreceived" nonrefundablepayments. Even assuming that thecommission payments were nonrefundable, the December 2006 commissions agreement is signed by the 

### Jerdes and their agent. Sams is not a party to that contract and obtained rights to a 

### commission onlybyprocuring abuyer.3 Savchukhasnotcited anyevidencethatcould supporthis theory. F. Interest Payments 

### Savchuk argues that Sams breached her duties by permitting the Jerdes to charge intereston funds that had notbeen loaned. Hedoes not cite any case orstatute establishing that a buyercannotagree to pay intereston installmentpayments. Indeed, 

### the usury provision in RCW 19.52.010 contemplates that interest can be charged for any "loan or forbearance."

II. Duties after execution ofthe REPSA 

### Savchuk likewise cannot establish that Sams breached any duties after the execution ofthe REPSA, because she did not owe him any duties at that time. And,

even if she did, neither her actions before or after the REPSA was executed caused Savchuk's harm. His claims fail as a matter oflaw. 

### 3 Further, as discussed below, commissions are generally earned when an enforceable REPSA is signed and all contingencies are waived or satisfied. Savchuk knew that Sams would receive a commission. When Sams actually received her payments is an issue oftiming, not entitlement. Her incentive to pursue closing existed regardless ofwhen payments were received.

14No. 68608-9-1/15


### Under RCW18.86.070,the agency relationship between a broker and a principal continues until the earliestof completion ofperformance bythe broker, expiration of the term agreed to by the parties, termination of the relationship by mutual agreement, or 

### termination of the relationship by notice from either party to the other. This statutory provision makes no distinction betweenthe brokerrepresenting the buyerorthe seller. The relevant inquiry in this case iswhen there was "completion ofperformance." Completion ofperformance occurs when the broker has earned his or her commission. 

### Pilling v. E. & Pac. Enters. Trust. 41 Wn. App. 158, 165, 702 P.2d 1232 (1985). Commission is generally earned when a seller accepts a purchaser's offer and enters into a binding and enforceable contract. Langston v. Huffacker, 36 Wn. App. 779, 789, 678 P.2d 1265 (1984). That is not to say an agent and his principal cannot make an agreement further limiting the right to a commission. For instance, in Cogan v. Kidder, Mathews &Segner, Inc., the agency relationship did not terminate when a binding and enforceable contract was entered, because the agent continued to work toward closing and the earnest money agreement expressly provided that the commission would be earned "'if and when the sale closes."' 97 Wn.2d 658, 663-64, 648 P.2d 875 (1982). Likewise, in Ward v. Coldwell Bank/San Juan Props., Inc., a sale was contingent upon 

### the buyer obtaining financing. 74 Wn. App. 157, 162, 164, 872 P.2d 69 (1994). The courtconcluded that, "[t]o the extent [the agent] was acting to close the sale, itowed an ongoing duty to the [principal] until the sale closed." JcL at 164. The clear rule emanating from these cases is that a commission is earned when an agreement is entered, all contingencies are waived or satisfied, and the commission itself is not

15No. 68608-9-1/16


### further limited by agreement. No written agreement existed between Sams and Savchukwhich created, extended, or limited duties. Savchuk argues that those cases concerned sellers and that there is no such 

### rule for buyer's agents. But, he does not cite any authoritysuggesting that a different rule applies forbuyer's agents, and the governing statutes do not make any distinction between buyer's and seller's agents. He also argues that when the commission is earned is an issue determined bycontract, usually inthe listingagreement, and that the listing agreement is not inthe record. That, however, supports the conclusion that the 

### general rule applies here. If he wants to argue that the listing agreement extended Sams's duties, he needs to produce some evidence of its contents. Savchuk cannot establish a genuine issue ofmaterialfact by hypothesizing aboutwhatitems outsidethe record might say. 

### Sams represented Savchuk during negotiations, through the time he signed the REPSA in January 2007. The original agreement signed in October 2006 contained only a feasibility contingency. Thatcontingencywas expresslywaived inJanuary 2007. No further contingencies remained, and all Savchuk had to do was make his scheduled payments. There was nothing left for Sams to do and she did not owe Savchukfurther duties.At some point in 2007, Savchuk breached the contract and he was unable to close inAugust 2007 as contemplated by the REPSA. Although he asserts that Sams provided deficient performance, his liability at that time was limited to forfeiture of his $20,000 earnestmoneydeposit.

16No. 68608-9-1/17


### He claims that he contacted Sams concerning the extension, and Sams "urged me to agree to the extension and told me that Icould rely on the Jerdes' agent, Anne 

### Inman, to treat me fairly." "As a consequence, I did rely on Anne Inman." Those alleged statements are insufficientto reviveSams's duties. Itis undisputed that shedid not review the agreement. In fact, it is undisputed that she did not even know theterms 

### of the extension, let alone advise Savchuk concerning those terms. She did not improperly abdicate her duties by failing to do so, because she had no duties to 

### Savchuk at the time. Further, her statement that Inman would treat Savchuk "fairly" suggests onlythat Inman would treat him fairly innegotiations. Thatdoes not implythat 

### she recommended Savchuk treat Inman as his agent. Although Savchuk claims he relied on Inman, he does not claim that he expected Inman to act in his best interests. 

### Nor should he have, regardless ofwhether Inman was a fair negotiator, he still knew 

### she was the Jerdes' agent.4 Although Sams could have represented Savchuk in the August 2007 negotiations, she did not do so and she had no obligation to do so. She had fulfilled her duties. Without her participation, and without seeking assistancefrom another agent or
an attorney, he negotiated with Inman and added an addendum to the REPSA that contained significantly worse terms. In addition to raising the interest rate and paying
an extension fee, the agreement expressly stated that all payments were non

### 4Abrokerwho performs real estate brokerage servicesfor a buyer is a buyer's agent unless the broker has entered into a written agency agreementwith the seller, in which casethe brokeris a seller's agent. RCW 18.86.020(1)(a). Inman negotiated with Savchuk. She did not provide him brokerage services. And, Savchuk did not enter an 

### agreementwith Inman making her a dual agentas contemplated by RCW 18.86.060.

17No. 68608-9-1/18


### refundable in the event offailure to close. His renegotiation and subsequentbreach of 

### theextension agreementultimatelyledto hisdamages.5

III. Conclusion 

### Sams's duties were terminated upon the execution of a valid and enforceable agreement with no remaining contingencies. Savchuk has not established that there


### are genuine issues of material fact concerning breaches that allegedly occurred before the execution of the REPSA that preclude summary judgment. Further, Savchuk's damages were caused by his indisputable breach ofthe contract, renegotiation ofthe agreement in August 2007, and breach of that extension, none of which Sams participated in. No breach ofduty or negligent conduct claims remain, upon which the CPA claim could have been predicated. Sams is entitled to summaryjudgment as a matterof law. The superiorcourtdid noterr. We affirm.

WE CONCUR



### 5 Sams makes a cursory argument that, even if she breached her duties concerning the January 2007 REPSA, her breach did not proximately cause Savchuk's 

### harm, because he renegotiated without her participation. We conclude that Sams did not breach her duties prior to the execution ofthe January 2007 REPSA, and had no 

### duties afterthe agreementwas executed. We need notreach hercausation argument.

18