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### 2G!3JL'H 10 rM 12= 37 IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON GBC INTERNATIONAL BANK, a California corporation, Respondent,

v. QUEEN ANNE BUILDERS, LLC, a Washington limited liability company, SEATTLE SIGNATURE HOMES, INC., a Washington corporation, CROWN DEVELOPMENT, INC., a Washington corporation, ANDY RYSSEL, an individual and the marital community of ANDY RYSSEL and RENEE RYSSEL, Defendants, CORY J. BURKE and GENEANNE G. BURKE, and the marital community composed thereof, GREG H. BLUNT, an individual and the marital community ofGREG H. BLUNT and JILL BLUNT, Appellants, JOHN H. BARGREEN, and individual and the marital community of JOHN 0. BARGREEN and TERI O. BARGREEN, Defendants. No. 68240-7- DIVISION ONE UNPUBLISHED OPINION

FILED: June 10, 2013

Grosse, J. — A bank's action to recover monies from signators and 

### guarantors of an unsecured note is not precluded because those same signators 

### and guarantors also received a separate loanwhich was secured by a deed of trust on property that the bankjudiciallyforeclosed. Here, the documents clearly showed that the loan at issue was unsecured. Under these circumstances, theNo. 68240-7-1 / 2
trial court did not err when it ruled that as a matter of law that the foreclosure on 

### the deed oftrust did not prohibit the bank from seeking to recover the monies owed on the unsecured loan. Accordingly, we affirm. In 2007, Queen Anne Builders, LLC (Queen Anne) refinanced property 

### with a $1,515,000.00 loan (Loan 4190) from Shoreline Bank. The loan was 

### evidenced by a business loan agreementexecuted the same day. As collateral for Loan 4190, Queen Anne granted Shoreline Bank a deed of trust in the 

### underlying real property. Loan 4190 matured on September 8, 2008. Property values had plummeted and the property was appraised at less than the loan's value. Shoreline Bank and Queen Anne executed a change interim agreement 

### extending the maturity of the loan for 60 days topermit Queen Anne tofigure out

a plan ofaction. 

### Shoreline Bank agreed to extend the maturitydate ofLoan 4190for a year 

### and a halftoMay 8,2010. In return, because thepropertywas appraised at less than the loan's value, the bank required that Loan 4190 be paid down, interest 

### reserves be set-aside during thattime, and that all real property taxes be paid current. The bank agreed to issue a second loan for $500,000.00 (Loan 2545)
as a lineofcreditto paydowntheLoan4190from $1.5milliontobring itlinewith 

### the loan tovalue guidelines. Both loans were guaranteed byAndy and Renee 

### Ryssel, Cory and Geneanne Burke, Greg and Jill Blunt, and John and Teri 

### Bargreen (collectively, Burke).1

1John andTeri Bargreen have beendismissed from this suit and are no longer parties.No. 68240-7-1 / 3 On April 27, 2010, both loans were in default due to nonpayment. On April 28, 2010, Shoreline Bank filed a complaint against Queen Anne and Burke. On September24, 2010, Shoreline Bank nonjudicially foreclosed its deed oftrust 

### against the property on Loan 4190.2 On October 1, 2010, Washington State closed Shoreline Bank and the Federal Deposit Insurance Corporation (FDIC)
was appointed as receiver. On the same date, GBC International Bank (GBC) became the successor in interest to the FDIC. Atthe close of a five dayjury trial, the trial court ruled "as a matter of law that the foreclosure on the 4190 [Loan] did not foreclose the 2545 [Loan]." The remaining issues were sentto thejury which found that there was no fraud when the loan was made, that GBC was not estopped from enforcing the loan against the defendants, and that there were no misrepresentations. After the jury's verdict in favor of GBC, the trial court issued a judgment in the amount of $578,465.18. Burke appeals. 

### Burke first argues that the trial court erred in holding that the foreclosure

on Loan 4190 did not preclude the bank from bringing this action to recover on 

### the promissory note forthe $500,000.00 in Loan 2445. There is no merit to this contention. The loan documents are clear that only one loan, Loan 4190, was 

### collateralized bythe deed of trust. Loan 2545 was a separate, unsecured line of credit guaranteed by Burke. Documents forthe second loan clearly indicate that itwas unsecured and that the property was not listed as collateral. Unlike Loan 

### 2At the time of the trustee's sale, the outstanding balance owed to Shoreline Bank was $1,117,316.14. Shoreline Bank bid $900,000.00, took over the 

### property, and later sold it for $490,000.00, leaving a loan deficiency of $217,316.00. (September24, 2010).No. 68240-7-1/4 4190, Loan 2445's promissory note for the $500,000.00 listed no collateral. The change in terms agreement with Queen Anne specifically states that the 

### $500,000.00 line of credit is unsecured. The deed of trust does not apply to Loan 2545 because the document granting the line of credit for Loan 2545 did not reference that it was secured by the real estate. The trial court's ruling was
correct. Instruction Burke next argues thatthe courterred in refusing to give his proposedjury 

### instruction onestoppel.3 Burke proposed the following jury instruction: Washington law does not permit a party to enforce an oral agreement to loan money offensively against a bank in order to make the bank loan money. However, Washington law does not prevent a party from relying upon an oral agreementto loan money defensively to excuse performance. The court rejected this instruction because itwas unnecessarily complicated and 

### difficult for a jury to understand the concept of using a statute defensively as opposed to offensively. Instead, the trial court offered Instruction 14, which listed 

### the elements of estoppel as they applied to the present case.4 Additionally, Instruction 13 provided:



### 3"A trial court's decision to give ajury instruction is reviewed de novo ifbased upon a matter of law, or for abuse of discretion ifbased upon a matter of fact." Kappelman v. Lutz. 167 Wn.2d 1, 6, 217 P.3d 286 (2009). "Instructions are sufficient if they permit each party to argue his theory of the case, are not 

### misleading, and when read as a whole, properly inform the trier of fact of the 

### applicable law." Farm Crop Energy. Inc. v. Old Nat'l Bank of Washington. 109 Wn.2d 923, 750 P.2d 231 (1988). 

### 4The doctrine of equitable estoppel applies when a party acts to hisprejudice in reasonable reliance on the assurances of another. Equitable estoppel requiresNo. 68240-7-1 / 5 

### A party is not allowed to make a claimthatcontradicts or repudiates its earlier statement, admission, or conduct on which another has reasonably relied, if the relying party would be injured by such contradiction or repudiation. This is known as "estoppel." Instructions 8 and 9 were identical to 6A Washington Practice: Washington 

### Pattern Jury Instructions: Civil 301.06, 301.05 (6th ed. 2012). The instructions 

### permitted the jury to decide the intended meaning of the contract language and 

### whetheritwasintegrated.5
clear, cogent, and convincingevidence of"(1) a party's admission, statement or act inconsistentwith its later claim; (2) action by another party in reliance on the 

### first party's act, statement or admission; and (3) injury that would result to the 

### relying party from allowing the first party to contradict or repudiate the prior act, statement or admission." Kramarevckv v. Dep't of Soc. & Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 (1993). 

### 5Instruction 8provided: A contract is to be interpreted to give effect to the intent of the parties at the timethey entered the contract. You are to take into consideration all the language used in 

### the contract, giving to the words their ordinary meaning, unless the parties intended a different meaning. You are to determine the intent ofthe contracting parties by 

### viewing the contract as awhole, considering the subject matter and apparent purpose of the contract, all the facts and circumstances leading up to and surrounding the making of the contract, the subseouent acts and conduct ofthe parties to the contract, and the reasonableness of the respective interpretations offered bv the parties. (Emphasis added.) And Instruction 9 provided: 

### If you find that all of the provisions of an [sic] agreements between GBC International Bank and the Defendants are contained 

### in a single written document, and that the document was intended 

### bytheparties as theirfinal agreement on the subjects addressed in it, then you may not consider evidence outside of the written document to add to, subtract from, vary, or contradict that written document. However, if vou find that such written document was not intended to be a complete expression of all of the terms agreed upon bv those parties, that is. that the document does not containNo. 68240-7-1 / 6 These jury instructions permitted Burke to argue his theory of the case that GBC was estopped from enforcing the guaranties because they were given only after misrepresentations from Shoreline Bank that it would provide a 

### construction loan. Testimonyfrom several loan officers and representatives from the bank refuted this proposition. Burke extensively cross-examined the bank's witnesses and put forth his own testimony from the guarantors that they were 

### induced to sign the guarantee loans by the promise that a construction loan 

### would be forthcoming, which would buy out their interest. That matter is one of fact forthejury which had adequate guidance. 

### In addition, we reject Burke's assertion that his instruction language was 

### necessary because he was prejudiced by language contained in the bank's 

### notice offinal agreement that "[o]ral agreements or oral commitments to loan money, extend credit, or to forebearfrom enforcing repayment of a debt are not 

### enforceable underWashington law."6 Suchlanguage isrequired by statutefor a 

## creditagreementtobeenforceableagainstacreditor.7

all of the terms of their agreement, then vou may also consider evidence of the circumstances surrounding the making of the agreementto supply additional terms ofthe agreement between the parties, but only ifthey are not inconsistent with the provisions of the written document. A contract that was intended bv the parties as their final agreement on the subjects addressed therein may nevertheless be unenforceable due to fraud oreguitable estoppel. (Emphasis added.) 6RCW 19.36.140. 

### 7RCW 19.36.110 provides that"[a] credit agreement is notenforceable against thecreditorunless the agreement isin writing andsigned bythecreditor." See alsoRCW 19.36.140 (setting forth the requirements for notices to be included in credit agreements).No. 68240-7-1 / 7 Judgment on Jury Verdict 

### The jury found in favor of GBC and in a special verdict form awarded the 

### bank "[t]hedollaramountthatis currentlydueon Loan No. 2545."8 GBC moved for an order of entry ofjudgmentfor the amounts owing on the construction loan 

### togetherwith interest. The trial court issued a judgmentin the amount of $578,
465.18. 

### The actual amount owed was not in dispute.9 The promissory note provided that the principal amount was $500,000.00, specified the method for

In a specialverdictform, the courtsubmittedthefollowing question to thejury: Question 8: If you find that Queen Anne Builders, LLC or any 

### guarantor is liable to GBC International Bank on Loan No. 2545, what is the amount ofdamages? 

### (WritethedollaramountthatiscurrentlydueonLoanNo. 2545) 

### Thejurydid notwrite in adollar amount, butinstead wrote on theline provided: "The dollaramountthat is currently due on Loan No. 2545." 

### 9After the verdict was delivered, outsidethe jury, the following colloquy occurred: THE COURT: I assume that everyone agrees that they wrote the amountdue on the loan and thatwe allagree what thatamount is[.] The actual dollar amount isn't in dispute.
MR. WILLIG: Yeah.
MR. GOSS: It's true. THE COURT: Okay. 

### MR. GOSS: Although we do have the 22,000 that's out there that's
THE COURT: Itwasn't actually submitted to them. Itwasn't argued to them.No. 68240-7-1 / 8 

### calculation of interest, and the amount owed is merely a simple mathematical calculation. Courts have entered judgment in the proper amount where the 

### amount, as here, is a matter of mere calculation.10 Dawn Beagan, Vice President of Credit Administration, stated that the total amount currently due for Loan 2545 was $574,479.16, including the principal balance of $500,000.00, accrued interest of $74,479.16 as of October 25, 2011, at the per diem interest rate of 7 percent (which equals the per diem amount of$97.22). Burke argues that there was a discrepancy of some $22,684.00. Burke arrives at that figure from the testimony of Kathleen Bennett, Andy Ryssel's bookkeeper, who stated that in her opinion the first loan only needed to be paid 

### down to $1,140,000.00, instead of the $1,117,316.14.11 But that $22,684.00 was in fact applied to the first loan as evidenced by Bennett's response to a query from counsel whether she meant that Queen Anne did not get the benefit ofthat $22,684.00.

10 MR. BUTLER: Your Honor, I think we'd be happy to rely on the 

### testimony as presented at trial by Dawn Beagan. I believe that amount was the same as was quoted in closing argument, that if there's any question that amountwas testified to. THE COURT: Well, I'll let you have yourfurther discussion about it, but within the week

- actually, by next Wednesday, ifpossible, if you could submit ajudgmenton verdict, okay? See Buffington v Henton. 70 Wash. 44, 47, 126 P. 58 (1912) (a general verdict 

### finding a breach of contract against one party, permitted the court to enter 

### judgmentto the proper amount as fixed by the contractitself, where such amount is a matterof mere calculation). 

### 11 $375,000.00 was paid to Loan 4190, reducing its total amount due and owing to $1,117,316.14.

8No. 68240-7-1 / 9 Oh, of course not. No, what happened was they needed to reduce the loan to one million 140 and they were only supposed to use enough to getthe loan, the first loan, to that one million 140. Itdidn't require the full 375,000 to get to that amount. Ifthey had only reduced it to one million 140 there would have been $22,000 more available on the second loan to advance for interest. 

### Moreover, when offering instructions, the parties agreed that the amount


### was not disputed, only whether GBC was estopped from seeking repayment by the guarantors. Under RAP 18.1, GBC requests attorney fees on appeal. Because the 

### contract includes a provision for attorney fees, GBC is entitled to fees on appeal 

### as theprevailing party.12
Affirmed.

~*Vw

# A

WE CONCUR:



### 12 See Reeves v. McClain. 56 Wn. App. 301, 311, 783 P.2d 606 (1989) ("A 

### contractual provision for anaward ofattorney fees attrial supports anaward of attorneyfees on appeal.").