### FILED July 7, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE ROCKROCK GROUP, LLC, a ) Washington limited liability company, and ) RUSSELLROCK GROUP, LLC, a ) Washington limited liability company, Appellants,


### v. VALUELOGIC, LLC, a Washington limited liability company, TERRY SAVAGE and JANE DOE SAVAGE, a married couple, and JENNYBENSON AND JOHNDOEBENSON, a married couple, Respondents and Cross-Appellants, ERIC SATCHJEN, WORKLAND WITHERSPOON, a domesticprofessional liability company, RIVERBANK, a domestic financial institution, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 32568-7-111

OPINIONPUBLISHED IN PART

LAWRENCE-BERREY, A.CJ. -Anappraiser's liability for negligent misrepresentation is limitedto theperson or one ofa limited group ofpersons for whoseNo. 32568-7-111 RockRock Group, LLCv. Value Logic, LLC
benefit and guidance he or she intended to supplythe appraisal report orknewthe recipient intendedto supply it. Here, Value Logic appraisedtwo properties and negligently reported the values ofthose properties to be much greater than theirtrue values. The members oftwo LLCs relied onthe reports. However, the reports were intended only for the benefit and guidance ofRiverBank, the lender in the transactions. There was no evidence Value Logic intendedto supplythe reports for the benefit and guidance ofthe LLCs ortheirmembers. Andthere was no evidence Value Logic knew RiverBank would supply the reports to the LLCs ortheirmembers for theirbenefit and guidance. In the published portion ofthis opinion, we conclude the trial courtproperly dismissed the LLCs' negligentmisrepresentation claims. In the unpublishedportion of this opinion, we affirm the trial court's summary dismissal ofthe LLCs' negligence and ConsumerProtection Act (CPA), chapter 19.86 RCW, claims and we decline to address a constitutional argumentraised for the first time on appeal. FACTS The two appraised properties are a 51-acre property and an adjacent 39-acre property. The properties are located nearAirway Heights, Washington. Bothproperties
are vacant, and both are zonedpartially rural traditional and partially light industrial.
2No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
A. Sundevil initiatespurchases Gregory Jeffreys and his wife Kimberly Jeffreys operated a real estate development company called Sundevil Development, LLC. In mid-2006, Mr. Jeffreys began negotiations to buythe two properties. Mr. Jeffreys contacted Brian Main, a Spokane realtor. Mr. Jeffreys told Mr. Mainhe hadthe two properties underpurchase, knew someone who wanted to buy them, andtheprojectwouldtum quickly and not financially expose Mr. Main. Mr. Jeffreys said he would find financing for the purchases and putthe documents together, and asked Mr. Main to find investors. Mr. Jeffreys selected RiverBankto finance the purchases. On September 20, 2006, Sundevil executed a purchase and sale agreementto purchase the 51-acreproperty for $475,000. On September25, 2006, Sundevil executed a purchase and sale agreement to purchase the 39-acreproperty for $300,000. B. RiverBankretains Value Logic to appraise theproperties In September 2006, RiverBank contacted Value Logic to request a bid to appraise both properties. Value Logic bid $3,000 to appraise the largerproperty and $2,000 to appraise the smallerproperty. RiverBank accepted the bids and directed Value Logic to appraise the properties. Value Logic employee Jenny Benson inspected the properties on September 28.
3No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
On October 9, 2006, Value Logic sent RiverBank the appraisal for the 51-acre property. Value Logic reported the value ofthe largerproperty was $4,500,000, or $2.00 per square foot. OnNovember 16, 2006, Value Logic sentRiverBankthe appraisal for the 39-acreproperty. 1 Value Logic reported the value ofthe smallerproperty was $4,250,000, or $2.50 per square foot. In its appraisal reports, Value Logic stated, "[t]he function ofthis appraisal is to provide the client [RiverBank], with a value estimate as a basis onwhich toprovide financing and to facilitate a purchase." Clerk's Papers (CP) at 243, 258. The appraisal reports identified the clients as RiverBank and its employee, Rachel Pulis. The appraisal reports containedthe following limitations ofuse: Your attention is directed to all the Assumptions and Limiting Conditions on Pages 11 through 13.

This report is prepared for the sole use and benefit ofthe client
.... Neitherthis report, nor any ofthe information contained herein shall be used orrelied upon for anypurpose by any person orentity otherthanthe client. The appraiser is not responsible for the unauthorized use ofthis report.

1Accordingto Value Logic, it submitted both appraisals on October 9, but then resubmitted the appraisal for the 39-acreparcel with a corrected property description in November. 4No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
Unless otherwise stated, this appraisal report is made expressly subjectto the following conditions and stipulations: 1. This appraisal report is considered confidential between the appraiser andthe client.

13. The liability of[Value Logic] is limited to the client only and only up to the amount ofthe fee actually received for the assignment. Further, there is no accountability, obligation, or liabilityto any third party. Ifthis report is placed inthe hands ofanyone otherthan the client, the client shall make suchparty aware ofall limiting conditions and assumptions ofthe assignment and related discussions.

17. Withoutpriorwritten approval from the author, the use ofthis report is limited to internal decision making and financing. All other uses are expressly prohibited. Reliance onthis reportby anyone other than the client, [or] for a purpose not set forth above, is prohibited. The author's responsibility is limited to the client. CP at 237-49, 252-64. C. Mr. Jeffreys andMr. Main solicit investors Mr. Jeffreys and Mr. Main solicited investors to buy memberships in the LLCs. They intended one LLC-RockRock Group, LLC-topurchase an interest inthe 51-acre property. They intended another LLC-RussellRock Group, LLC-topurchase an interest in the 39-acreproperty.


### 5No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
Mr. Jeffreys called John BartJohnson, who later agreed to be the manager ofboth LLCs. Mr. Jeffreys told Mr. Johnson he was getting a group ofpeople togetherto buy
some property nearAirwayHeights. He told Mr. Johnson, "withthe appraisals I got,[2l
we should be able-anidiot could come into these properties and make a quarter million dollars." CP at 451. Mr. Jeffreys explained he was going to get 10 people to be partners, and he would acquire the land and sell 75 percent to these 10 people, and keep 25 percent for himself. He said he would get the financing. Mr. Jeffreys described the venture as "short-term, get in, buy it, tum around and sell it." CP at 453. Mr. Johnson visited the properties with Mr. Jeffreys. Mr. Jeffreys had copies of both appraisal reports with him and showed them to Mr. Johnson. 3 Mr. Johnson "look[ed] at an appraisal which was for four-point-some million." CP at 456. However,

2There is no evidence how Mr. Jeffreys came into possession ofthe appraisal reports. 3Mr. Johnson sent a co-investor an e-mail in September 2011 in which Mr. Johnson said, "Theynow are questioning ifall the investors saw the appraisal before joining in? Ipersonally did not see the appraisal I wasjusttold by Jeffreys thatthey came in with large values." CP at 470. When deposed, Mr. Johnson nevertheless insisted he saw the appraisals: "I remember going into his pickup, looking at something, and then, five years later, I said that I did not see it. So I don'tknow." CP at 457. In reviewing a summaryjudgmentmotion, this court views all facts in the light most favorable to the nonmovingparty. Barish v. Russell, 155 Wn. App. 892, 900, 230 P.3d 646 (2010). In this case, RockRock and RussellRock are the nonmovingparties, so wepresent the facts as ifMr. Jeffreys showed the appraisals to Mr. Johnson. 6No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
Mr. Johnson "didn't [review the appraisal report for details]," but "just sawthe bottom line." CP at 456. In September 2006, Mr. Main called Kelly Hubbell, who was a friend ofhis from high school. Ms. Hubbell was a managerat Stan & Hubbs, LLC. Mr. Main askedMs. Hubbell and other members ofStan & Hubbs to invest in the 51-acreproperty. Mr. Main pitchedthe investment to Ms. Hubbell with a prospectus. Theprospectus stated the "[e]stimated currentvalue equals $2.00 per sq. ft. minimum equals $4,443,120." CP at 668. Before the sale closed, Mr. Maintold Ms. Hubbell that the appraisedprice ofthe 51-acre property was $4,500,000. Ms. Hubbell wrote this appraised value on her prospectus. Ms. Hubbell invested in RockRock, the eventual purchaser ofthe larger property. Several weeks before the closing, Mr. Main also called David Largent. Mr. Main told Mr. Largent the appraisal came back, and the 51-acreproperty was worthwhatthey expected-around $4,000,000. Mr. Largent and his wife both invested in RockRock. In December 2006, Mr. Jeffreys held a meeting at his hometo pitch the sale on the 39-acreproperty. Manypotential investors attended. Mr. Jeffreys said the investors wouldpurchase the parcel at one-halfthe price and would be able to sell it shortly for a very highprofit. Mr. Jeffreys emphasizedthe 39-acrepropertywas appraised for a very
7No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC high amount, and the appraisal report verified the property's value. Alan Cummins and Keith Watkins both attended this meeting and both eventually invested in RussellRock, the eventual purchaser ofthe smallerproperty. D. RockRock isformedandbuys 75percent of the 51-acreproperty On October2, Sundevil assigned to Mr. Main 75 percent ofits right to purchase the 51-acre property. Mr. Main agreedto pay $1,630,000 for a 75 percentinterest in the property. The following day, RockRock was formed. Mr. Mainthen assigned his purchase right in the property to RockRock. To finance the purchase, RockRock executed promissory notes in favor ofRiverBank for $1,025,000, and in favor of Sundevil for $800,000. RockRock's members personally guaranteedthe loans, and RockRock executed a deed oftrust in favor ofRiverBankto secure the loan. The sale closed on November 8. E. Russel!Rock isformedandbuys 75percentof the 39-acreproperty OnNovember 15, 2006, RussellRock was formed. Sundevil assigned to Mr. Main 75 percent ofits right to purchase the 39-acreproperty. Mr. Main agreed to pay $1,630,000 for a 75 percent interest in this property. Mr. Main assigned his rightto RussellRock.

8No. 32568-7-111 RockRock Group, LLCv. Value Logic, LLC
Before signing the loan and personal guaranty documents, some ofRussellRock's members asked to see ValueLogic's appraisal with the loan documents. In particular, Mr. Cummins called Eric Sachtjen, the closing agent, and asked for a copy ofthe appraisal that Mr. Jeffreys had discussed at the December2006 investormeeting. Mr. Sachtjen e-mailed Rachel Pulis at RiverBank and asked her for the appraisal. Mr. Sachtjenthen e-mailed Mr. Johnson and RussellRock's members. Mr. Sachtjen's e-mail stated, I have been asked to include the appraisal for this project with each ofyour set [sic] ofdocuments and I will do so. For now, I have attached the cover letter onthe appraisal, which shows the appraised value at $4.25 million. The purchase price is $1.63 million. CP at 467. Laterthat day, Mr. Sachtjen e-mailed the actual appraisal to all of RussellRock's members and Mr. Johnson. Mr. Cummins and Mr. Watkins both viewed the appraisal, and assert they would not have continued in the transaction had the appraised value been less than $4,250,000. RussellRock financed the $1,630,000 purchase price by executingpromissory notes to RiverBank for $990,000 and to Sundevil for $800,000. RussellRock's members personally guaranteed the loans, and RussellRock executed a deed oftrust in favor of RiverBank to secure the loan. The sale closed on January 12, 2007.

9No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
F. Litigation begins Rock.Rock and RussellRock (the LLCs) were not successful in sellingthe properties. By late 2009, balloon payments onthe various notes were becoming due. For this reason, the LLCs applied to Coastal Community Bankto refinance at least aportion ofthe obligations. In September 2009, Coastal Community Bankretained Value Logic to re-appraise the two properties. Ms. Benson issued two new appraisal reports on September 25. This time, she appraised the 51-acre property at $3,375,000 and the 39-
acre property at $2,550,000. Ms. Benson attributed the reduction in values mostly to a depressed real estate market. In November 2009, RiverBank had an appraiserreview Value Logic's 2009 appraisal report for the largerproperty. The review appraiser e-mailed RiverBank's vice president and alerted him to a problem with Value Logic's report. He stated Ms. Benson
was correct that the light industrial portion ofthe property was worth $1.50 per square foot. However, he stated most ofthe acreage is zoned rural traditional, and thatportion of the acreage was worth only $0.28 per square foot. The review appraiser concluded the property was actually worth $1,427,100. He noted that Rock.Rock bought the property in 2006 for $1,630,000, and the drop in the real estate market was consistent with his opinion ofthe property's currentvalue.
10No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
RiverBank's vice president forwarded this e-mail to Mrs. Jeffreys and stated, "Ourreview appraiser didn't like the analysis that Jenny Benson did on RockRock." CP at 634. He then asked to discuss the issue with Mr. Jeffreys. In late February 2010, RiverBankretained another appraisal companyto appraise both properties. This company was separate from both Value Logic andthe previous review appraiser. This new appraiser agreed the light industrial portions ofthe properties
were worth $1.50 per square foot. However, the new appraiserbelievedthe rural traditional portions ofthe properties were worth roughly $0.15 per square foot. The new appraiser concluded the 51-acreproperty was worth $1,220,000, and the 39-acreproperty
was worth $520,000. On June 16, 2011, RockRock and RussellRock sued Value Logic, Mr. Savage, and Ms. Benson. The gravamen ofthe complaintwas Value Logic negligently overvalued the properties in its 2006 appraisal reports, and the LLC members relied onthose values when they authorized Mr. Johnson to proceed with the purchases. The legal theories asserted in the complaint were negligent misrepresentation, negligence, and violation of the CPA. Value Logic moved for summaryjudgment, arguing the statutes oflimitations barred the LLCs' claims, it did not owe the LLCs a duty, and the LLCs did notjustifiably
11No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC rely on its appraisal reports. The trial court granted Value Logic's summaryjudgment motion. The trial court determined, as a matter oflaw, Value Logic did not owe the LLCs
a duty, and the LLCs did notjustifiablyrely on the appraisal reports. Thetrial court also dismissed the CPA claims because the LLCs' claims centered on Value Logic's actions in its professional capacity, not its entrepreneurial capacity. The LLCs appeal. ANALYSIS A. Summary judgmentstandardof review This court reviews a summaryjudgment order de novo, engaging in the same inquiry as the trial court. SentinelC3, Inc. v. Hunt, 181 Wn.2d 127,140,331 P.3d 40 (2014) (quotingEllis v. City of Seattle, 142 Wn.2d 450,458, 13 P.3d 1065 (2000)). Summaryjudgment is appropriate only if"thepleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact and thatthe movingparty is entitledto a judgmentas a matter oflaw." CR 56(c). "Amaterial fact is one upon which the outcome ofthe litigation depends in whole or in part." Atherton Condo. Apt.-OwnersAss'nBd. of Dirs. v. BlumeDev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). This courtviews all facts and reasonable inferences in the light most favorable to the nonmovingparty. SentinelC3, 181 Wn.2d at 140. Summaryjudgmentis appropriate only ifreasonable
12No. 32568-7-111 RockRock Group, LLCv. Value Logic, LLC
persons could reach but one conclusion from all the evidence. Id. (quoting Clements v. Travelers lndem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993)). When reviewing a civil case in which the standard ofproofis clear, cogent, and convincing evidence, this court "'must viewthe evidence presented through the prism of the substantive evidentiary burden."' Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008) (quotingAnderson v. LibertyLobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)); see also Gossett v. FarmersIns. Co. ofWash., 133 Wn.2d 954, 973,948 P.2d 1264 (1997). The burden ofprooffor negligent misrepresentation claims is clear, cogent, and convincing evidence. Lawyers Title Ins. Corp. v. Soon 

### J Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002). Thus, we must determine whether, viewingthe evidence in the light most favorable to the nonmoving party, a rational trier offact could find that the nonmovingparty supported its negligent misrepresentation claims with clear, cogent, and convincing evidence. See Woody, 146 Wn. App. at 22. B. NegligentMisrepresentation The LLCs argue Value Logic's appraisal reports negligently misrepresented the true values ofthe properties, and their membersjustifiablyrelied onthe reported values in making their decisions to authorize the purchase ofthe properties.

13No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
In Schaaf v. Highfield, 127 Wn.2d 17, 22-23, 896 P.2d 665 (1995), the Supreme Court held that a real estate appraiser's liability for negligent misrepresentation is defined by Restatement (Second) of Torts § 552 (Am. Law Inst. 1977). That sectionprovides in relevantpart: (1) One who, in the course ofhis business, profession or employment, or in any othertransaction in which he has a pecuniary interest, supplies false information for the guidance ofothers in their business transactions, is subjectto liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2) Except [for one under a duty to providepublic information], the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one ofa limited group ofpersons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction thathe intends the information to influence or knows that the recipient so intends or in a substantially similartransaction. RESTATEMENT§ 552 (emphasis added). In applying§ 552, courts have set forth the following six elements, eachwhich must be proved by clear, cogent, and convincing evidence: (1) the defendant supplied false information to guide others in their business transactions, (2) the defendant knew or should have known that the information was supplied to guide the plaintiffin a business transaction, (3) the defendant was negligent in communicating false information, (4) the 14No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC plaintiffrelied on the false information, (5) the plaintiffs reliance on the false information wasjustified, that is, reasonable under the surrounding circumstances, and (6) the false information was the proximate cause ofdamages to the plaintiff. See Lawyers Title, 147 Wn.2d at 545; ESCA v. KPMGPeatMarwick, 135 Wn.2d 820, 827- 28, 959 P.2d 651 (1998). The only elements at issue here are the second and the fifththe duty ofcare element and thejustifiable reliance element. The particular duty, ifany, owed by a defendant to aplaintiffis a question oflaw. Schaaf, 127 Wn.2d at 21-22 (quoting Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992)). Washington courts analyze a real estate appraiser's duty ofcare under the framework ofthe law ofnegligent misrepresentation. Id. at 21. The ESCA trial court originated the six-elementtest set forth above in itsjury instruction. ESCA, 135 Wn.2d at 827-28. In that case, the Supreme Court approved the jury instruction, but analyzed only the fifth element,justifiablereliance. Id. at 828-33. The Supreme Court in Lawyers Title analyzed the first, second, and fifth elements. Lawyers Title, 147 Wn.2d at 546-54. There, the Supreme Court hinted the second element might be inaccurate when it quoted the "knew or should have known"jury instruction the ESCA trial court gave and added: "see also Haberman v. Wash. Pub. Power SupplySys., 109 Wn.2d 107, 162, 744 P.2d 1032, 750 P.2d 254 (1987) (observing
15No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
that the duty element is met 'where
... the defendant has knowledge of the specific injuredparty's reliance')." Lawyers Title, 147 Wn.2d at 549 (emphasis added). In Bolser v. Clark, 110 Wn. App. 895, 43 P.3d 62 (2002), we described the duty element consistent with the language of§ 552. There, we quoted§ 552 and defined the defendant's liability as being limited to persons for whose benefit and guidance the defendant intended to supply the appraisal report orknew the recipient intendedto supply it. 

### Id. at 901-03. We take this opportunityto reiterate this standard to clarifythe second element ofthe negligent misrepresentationtest. In accordance with§ 552, adopted by our Supreme Court, a defendant's duty is limited to a loss suffered by a person or one ofa limited group ofpersons for whose benefit and guidance the defendant intendedto supply the information or knew that the recipient intendedto supply it. To defeat summaryjudgment, the LLCs must present evidence sufficient for a reasonable trier offact to find by clear, cogent, and convincing evidence they have established the six elements oftheir negligent misrepresentation claims. The second element requires the LLCs to establish they were a limited group ofpersons for whose benefit and guidance Value Logic intended to supply the appraisal report orknew RiverBank intended to supply the appraisal report.

16No. 32568-7-111 RockRock Group, LLCv. Value Logic, LLC Here, Value Logic suppliedthe appraisal reports only for RiverBank's benefit and guidance. The reports state: Purpose and Function The purpose ofthis appraisal estimate is to estimate the market value ofthe subjectproperty as it existed on September 28, 2006, the last date on which the proper was inspected. The function ofthis appraisal is to provide the client [RiverBank], with a value estimate as a basis on which to provide financing and to facilitate a purchase. CP at 243, 258. Also as evidenced by the reports, Value Logic did not intend for anyone other than RiverBank to be guided by the reports-thereports define RiverBank as the client, state they were prepared for RiverBank's sole use and benefit, prohibit any person other than RiverBank from using or relying on them, and state the appraisals were confidential between Value Logic and RiverBank. The LLCs argue that underSchaaf a real estate appraiser's duty ofcare extends "to those involved in the transaction that triggered the appraisal report." Schaaf, 127 Wn.2d at 27. However, Schaaf did not address the situation where areal estate appraiser did not intend to supply the appraisal reports for the buyer's benefit or guidance and also did not know the lender intended to do so. The LLCs also argue Value Logic may not insulate itselffrom third-party tort liability with disclaimer language in its appraisal report. This precise issue was squarely
17No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
addressed in Bolser v. Clark. In Bolser, Jerry Bolserwas in the midst ofa marriage dissolution when he hired Stewart Clark to appraiseproperty ownedby Bolser Enterprises. Bolser, 110 Wn. App. at 898. BolserEnterprises consisted ofJerry Bolser, his brother TomBolser, andtheir motherEllen Bolser. Id. Thepurpose for the appraisal
was to value Jerry Bolser's interest in BolserEnterprises for purposes ofdividing marital property. Id. Priorto the appraisal's completion, BolserEnterprises began a partnership dissolution. Id. Mr. Clark eventually completedhis appraisal report. Id. The cover letter to the report contained limiting language, stating its purpose was for the marriage dissolution, andpurported to restrict its use to thatpurpose. Id. The BolserEnterprises partners settled their litigation, with Jerry Bolser and Ellen Bolserbuying out TomBolser. Id. at 898-99. In determining a fair value for TomBolser'spartnership interest, Bolser Enterprises relied on Mr. Clark's appraisal report. Id. It was later determined the report significantly overvaluedthe appraisedproperty. Id. BolserEnterprises suedMr. Clark for negligent misrepresentation. Attrial, substantial evidence supported the trial court's finding thatMr. Clark knew his report would be used by BolserEnterprises in the partnership dissolution case. Id. at 900. The evidence includedtestimony that BolserEnterprises paidMr. Clark for
18No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
the appraisal, and a letter confirming Mr. Clark's availability to testify in the partnership dissolution case. Id. at 899-900. On appeal, Mr. Clark argued that the limiting language in the cover letterto his appraisal report insulated him from liability. We stated, [D]uty is not negated by the language in the appraisal cover letterrestricting the report's use to the dissolution proceedings. Although such express limitations in an appraisal can limit an appraiser's duty to unknown plaintiffs and transactions, here [Mr.] Clark knew ofand acquiesced in BolserEnterprises' intent to rely on his appraisal in partnership decisions. CfPahre v. Auditor, 422 N.W.2d 178, 181 (Iowa 1988) (holding defendant did not owe duty to plaintiffwhere title report specifically limited its use and coverage andthere was no evidence that title company knew third party would see report). Bolser, 110 Wn. App. at 902-03. We agree with the LLCs that limiting language in an appraisal report is not dispositive. Buthere there is no evidence Value Logic either intended to supply the appraisal reports for the LLCs' benefit or guidance, or knew RiverBank intended to do so. The LLCs thus have failed to establish that Value Logic owedthem a duty. We conclude the trial court did not errby dismissing the LLCs' negligent misrepresentation claims. Because we conclude Value Logic did not owe the LLCs a duty, we need not determine whether the LLCsjustifiablyrelied on the appraisal reports or whetherthe LLCs brought their causes ofaction within the applicable period oflimitations.
19No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
Affirmed. The remainder ofthis opinion has no precedential value. Therefore, it will be filed for public record in accordance with RCW 2.06.040, the rules governing unpublished opm1ons. C. Negligence claim The LLCs argue the trial court erred in dismissing their negligence claims against Value Logic. They fail to explain what duty, apart from the duty set forth in§ 552(1), Value Logic supposedly breached. We fail to see any either and conclude the trial court did not err by dismissing the LLCs' negligence claims. D. CPA claims The LLCs argue the trial court erred when it dismissed their CPA claims against Value Logic. Value Logic responds the CPA claims wereproperly dismissed because Washington's CPA does not apply to professional services ofreal estate appraisers. The CPAprovides that "[ u]nfairmethods ofcompetition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." RCW 19.86.020 (emphasis added). Accordingly, to prevail in a private CPA action, the plaintiffmust establish five elements: "(l)unfair or deceptive act orpractice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiffin his
20No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC

or her business orproperty; (5) causation." Hangman Ridge TrainingStables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). A plaintiffsuing under the CPA must establish all five elements, and a CPA claim fails ifaplaintifffails to establish any one element. Id. at 793. In Short v. Demopolis, the Washington Supreme Court consideredwhetherthe practice oflawfalls within the CPA's definition of"trade or commerce." 103 Wn.2d 52, 55,691 P.2d 163 (1984). In that case, Mr. Demopolis retained a law firm to represent him in dissolving areal estate partnership and in a real estate forfeiture action. Id. at 53. Mr. Demopolis claimed that he specifically hired the partnerwith whom he consultedto represent him in the cases, and the partner gave the actual legal work to ajuniorpartner and an associate. Id. at 53-54. The court held that certain entrepreneurial orbusiness aspects ofthe practice oflaw fall within the CPA's definition of"trade or commerce"; for example, how the price oflegal services is determined, billed, and collected, and the way
a law firm obtains, retains, and dismisses clients. Id. at 60-61. However, Short further held that the substantive quality ofservices an attorney provides does not fall within the definition of"trade or commerce." Id. at 61. And claims "directed to the competence ofand strategy employed" by attorneys constitute allegations ofnegligence or malpractice, and as such, are not actionable under the CPA.
21No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
Id. at 61-62. Short concluded Mr. Demopolis's claims thathis attorneys failed to gather ) essential facts, pursue certain claims, and file a timelyjudgmentwere all exempt from the CPA. Id. at 61. In Ramos v. Arnold, Division One extended Short's holding to real estate appraisers. Ramos v. Arnold, 141 Wn. App. 11, 14, 169 P.3d 482 (2007). In Ramos, Mr. and Mrs. Ramos filed a CPA claim against Debbie Arnold for failing to include residential defects in the appraisal report. Id. at 16. CitingShort, theRamos court determined the complaint targeted the alleged inadequacy ofthe appraisal rather than the entrepreneurial aspect ofthe appraiser's business. Id. at 20. Because the CPA claim described an allegation ofnegligence, theRamos court affirmed the trial court's summary dismissal ofthe CPA claim. Id. at 21. Here, the gravamen ofthe complaint is that Value Logic was negligent in reporting the values ofthe properties, and the members ofthe LLCs relied on the values reported in authorizing the managing member to purchase the properties. As in Ramos, the LLCs' complainttargets the alleged inadequacy ofthe actual appraisals rather than any entrepreneurial aspect ofValue Logic's business. We conclude Value Logic's actions do not fall within the CPA's definition of"trade or commerce." Because the LLCs have

22No. 32568-7-111 RockRock Group, LLCv. Value Logic, LLC
failed to establish this element, the trial courtproperly dismissed their CPA claims on summaryjudgment. E. Invitation to lower the evidentiarystandard for negligence actions against realestate appraisers The LLCs invite this courtto re-examine the clear, cogent, and convincing standard ofproofthat applies to negligence actions againstreal estate appraisers. They argue the higher standard ofproof"gives appraisers a special privilege in violation or [sic] Article I, section 12 ofthe Washington Constitution." Appellants' Br. at 39. The LLCs did not raise this issue below. We generally decline to address issues not raised below. RAP 2.5(a). One exception to this general rule involves a manifest constitutional error. RAP 2.5(a)(3). "Aconstitutional error is manifest where there is prejudice, meaning a plausible showing by the appellant that the asserted errorhad practical and identifiable consequences ...." State v. Irby, 187 Wn. App. 183, 193,347 P.3d 1103 (2015), review denied, No. 92191-1 (Wash. Feb. 10, 2016). Here, the LLCs' negligent misrepresentation claims were not dismissed because ofthe high evidentiary burden ofproof, butbecause there was no evidence Value Logic (1) provided the appraisal reports for the LLCs' benefit or guidance, or (2) knew RiverBank intended to supply the appraisal reports to the

23No. 32568-7-III RockRock Group, LLCv. Value Logic, LLC
LLCs. Because the alleged constitutional error is irrelevant due to how we decided this appeal, it is not manifest and we decline to address it.

WE CONCUR: 

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