### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
PROTERRA DEVELOPMENT VENTURES LLC, No. 47567

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Appellant,

v. FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, SEVIER LLC, a Washington limited liability company, BRUCE KIRSCHENBAUM and CHRISTINA KIRSCHENBAUM, husband and wife, PAUL AGEE and JANE AGEE, husband and wife, UNPUBLISHED OPINION

Respondents.

S UTTON , J.

— Proterra Development Ventures LL C appeals the trial court ’ s order granting First America n Title Insurance Company ’ s (First American) motion for summary judgment and dismissal of its claims. Proterra ’ s claims arise from a r eal e state p urchase and s ale a greement where Proterra was the buyer and Sevier LLC was the seller of vacant land in Ridgefield. At closing , t he parties executed a h oldback a greement to ensure that expenses to obtain final engineering approval from the City of Ridgefield were paid. First American was the escrow agent of the holdback account and was instructed to pay invoices as authorized only by Bruce Kirschenbaum, the m anag ing m ember of Sevier. Filed Washington State Court of Appeals Division Two July 12, 2016No. 47567

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Proterra argues that (1) First Ameri can breached its fiduciary duty when an escrow agent drafted the h oldback a greement , (2) the h oldback a greement is ambiguous, and (3) First American dispersed funds without investigating the expenses. We affirm the trial court ’ s grant of summary judgment in favor of F irst American and award First American its reasonable attorney fees and costs on appeal

. FACTS On October 18 , 2005, Sevier executed the Vacant Land Real Estate Purc hase and Sale Agreement (REPSA ) to sell vacant land in Ridgefield to Landmark Development LLC (Landmark)

. Landmark assigned their interest to Proterra. First American was instructed by bo th Sevier an d Proterra to hold the escrow account and Ann Snyder was the escrow officer. The RESPA provided that “ [ a ] ll costs associated with progressing ‘ Canyon ’ s Ridge ’ through
P reliminary Plat and Final Engineering Approved status is the responsibility of [Sevier]

. ” C lerk’s
P apers (CP) at 13. On February 27, 2006, Proterra and Sevier executed the Es crow Instructions Vacant Land ( e scrow i nstructions), which contained the following relevant instructions: 7. [Proterra] agrees jointly and severally with [Sevier] to pay [First American] all costs, damages, judgments and expenses suffered, expended or incurred by [First American] in connection with or arising out of this escrow, including, but not limited to, reasonable attorney [] fees. 8. Any additional instructio ns given to [First American] herein shall be presented in writing. [Proterra] and [Sevier] further understand that contemporaneously herewith there may be instructions by third parties which are necessary for the completion of this escrow and are, therefo re, made a part hereof; namely, such instructions as may be received from a lender, grantor, vendor, or others, affecting the property which is the subject of this escrow.
CP at 23.No. 47567

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On March 10 , Kirschenbaum contacted First American to discuss a holdback agreement. Snyder informed him of the provisions First American would require in a holdback agreement. When the transaction closed on March 13 , final engineering had not been completed on the project. On March 13, contemporaneously with the closing of the transaction, Proterra and Sevier executed the Escrow H oldback Account Agreement ( “ h oldback a greement ” ) which, in entirety, stated the following:

An escrow holdback account will be established on March 13, 2006 simultaneous to the closing (recording an d funding) of the above referenced file number. First American Title has agreed to be the custodian of the holdback account for 60 days or through May 12, 2006. The intention of the holding account is to ensure expenses incurred by Sevier, L.L.C. to obt ain final engineering approval from the City of Ridgefield for the Canyon ’ s Ridge subdivision are paid. Provisions 1. Funds to establish the account come from the proceeds to the transaction, obtained through the closing process on March 13, 2006. 2. T he account duration will not exceed 60 days or May 12, 2006. 3. The amount of the holdback from closing shall be $75,000.00. 4. Invoice(s) along with authorization to pay same may only be made to First American Title by Seller, Bruce Kirschenbaum, Managi ng Member of Sevier, LLC. 5. Seller shall provide Buyer a final accounting of all invoices once final engineering approval has been issued by the City of Ridgefield. 6. Any remaining account funds on May 12, 2006 shall be distributed to the Seller, Sevier, LLC, in the form of cashiers [sic] checks or wire transfer.
CP at 28. Cherilyn R. Costa , s enior e scrow a dvisor for First American, testified that First American d id not draft the h oldback a greement because First American has a standard form and that “ the parties must have insisted on using their own. ” CP at 57. Costa also testified that “ [the h oldbackNo. 47567

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a greement] seem [ed] to contain the elements that [First Americ an] would have had in [their] standard agreement as a basic

. ” CP at 57. On March 15, Kirschen baum authorized First American to pay an invoice from Olson Engineering, dated February 27, 2006, in the amount of $52,763.07. This invoice included

“ charges from Nov

- Jan ” and noted , “ P lease see attached listing for a current breakdown of charges

. ” CP at 65. H owever , Kirschenbaum did not send the breakdown of charges to First American along with the authorization. First American paid this in voice as authoriz ed on March 15

. On March 26, Kirschenbaum authorized First American to pay a second invoice from Olson Engineering, dated March 21, 2006, in the amount of $18,923.60. This invoice included charges incurred in February and again noted that the breakdown of charges was attached, but the record does not indicate whether Kirschenbaum sent the breakdown of charges to First American. First American paid this invoice as authorized on M arch 28. First American dispersed the remaining funds, in the amount of $3,313.33, to Sevier via wire transfer on May 17, 2006. Prior to the disbursement of the balance, First American did not do anything to determine if there were any remaining final engineering approval expenses.
Proterra ’ s complaint alleged that First A merican breached its fiduciary duty when it negligently paid requested expenses unrelated to final engineering and sought damages of $75,942.74 for costs incurred relating to final engineering expenses. First Amer ican moved for summary judgment , arguing t hat an escrow agent ’ s duties are defined and limited by contract and that it did not breach the escrow instructions as a matter of law.No. 47567

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The trial court granted First America n ’ s motion for summary judgment, dismissed
Proterra ’ s claims with prejudice , and awarded First American its attorney fees and costs . Proter r a appealed.
ANALYSIS
I. S TANDARD OF R EVIEW We review summary judgment orders de novo and perform the same inquiry as the trial court, viewing all facts and reasonable inferences in the light m ost favorable to the nonmoving party. Elcon Const r ., Inc. v. E. Wash

. Univ. , 174 W n.2d 157, 164 , 273 P.3d 965 (2012). Summary judgment is appropriate only if “ the pleadings, depositions, answers to interrogatories, and admissions on file, together with t he affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ” CR 56(c). Where no dispute as to the material facts exists, summary judgment is proper. Elcon Con str
. , 174 Wn.2d at 165. A material fact is one that affects the outcome of the litigation. Elcon Constr. , 174 Wn.2d
at 164. The moving party bears the initial burden of establishing its right to judgment as a matter of law. Geer v. Tonnon , 137 Wn. App. 838, 843, 155 P.3d 163 (2007). Once the moving party satisfies its initial burden, the burden then shifts to the nonmoving party to show that a triable issue exists. Geer , 137 Wn. App. at 843. If the nonmoving party “ ‘ fails to make a showing sufficient to establish the existence of an element essential to that party ’ s case, and on which that party will bear the burden of proof a t trial, ’ ” then summary judgment is properly granted in favor of the moving party. Geer , 137 Wn. App. at 843 (internal quotati on marks omitted) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).No. 47567

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6 II. E SCROW A GENT ’ S F IDUCIARY D UTY Proterra argues that there are genuine issues of material fact as to whether First American breached its fiduciary duty to Proterra when an escrow agent draft ed a h oldback a greement that

was vague and one - sided , when the plain language of the h oldback a greement is ambiguous, and when First American dispersed funds without investigating the expenses. We disag ree. A. D UTY OF F IRST A MERICAN A claim for breach of fiduciary duty requires (1) the existe nce of a duty owed, (2) breach of that duty, (3) resulting injury, and (4) that the claimed breach proximately caused the injury. Micro Enhancement Int ’ l, Inc. v. Coopers & Lybrand , LLP, 110 Wn. App. 412, 433

- 34, 40 P.3d
1206 (2002). Proterra argues that Snyder, an escrow office r, i s held to the standard of a reasonable attorney and has a duty to use standard forms, citing Bowers v. Transamerica Title Ins urance Co

. , 100 W n .2d 581 , 675 P.2d 193 (1983). Proterra also argues t hat the language in the h oldback

a greement should be construed against First American as the drafter of the agreement , particularly whe n Snyder instructed Sevier as to what the agreement should contain

. Finally, Proterra argues that the plain language of the h oldback a greement only gives First American the authority to pay, not an obligation to pay. We disagree. 1. Duty in Drafting The selection and drafting of escrow instructions is the work of lawyers and is not to be performed by laypersons

. Bowers , 100 Wn.2d at 586

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. The standards that govern attorneys also apply to lay escrow agents who engage in the unauthorized practice of law

. Bowers , 100 Wn.2d at 588. A layman who at tempts to practice law is liable for negligence. Bowers , 100 Wn.2d atNo. 47567

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586

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. The duties of an attorney practicing law are also the duties of one who without a license attempts to practice law. Bowers , 100 Wn.2d at 587

. But Bowers is not analogous here because the use of standard forms is not a duty that an escrow agent owes under Bowers

. In Bowers , t he lay escrow agent had a duty to inform plaintiffs of the advisability of obtaining legal representation when she prepared the closing documents includin g both the seller ’ s escrow instructions and the buyer ’ s escrow instructions

. Bowers , 100 Wn.2d at 584. Proterra argues that Snyder ’ s communication with Kirschenbaum about First American ’ s requirements for a holdback agreement constitutes the unauthorized practice of law by Snyder

. But Proterra offers no evidence that First American drafted the h oldback a greement, that they failed to protect one of the parties, or that the resulting agreement was vague or one sided . Without any evidence that Snyder or First American actually drafted the h oldback

a greement, there is no evidence that Snyder engaged in the unauthorized practice of law. 2. Duty in Payment Instructions The escrow agent ’ s duties an d limitations are defined by the escrow instructions. Denaxas v. Sandstone Court of Bellevue, LLC , 148 Wn.2d 654, 663, 63 P.3d 125 (2003). The tasks in the instruc tions must be undertaken with “‘ ordinary skill and diligenc e, and due or reasonable care. ’”
Denaxas , 148 Wn.2d at 663 (internal quo tation marks omitted) (quoting Nat’l Bank of Wash

. , v. Equity Investors , 81 Wn.2d 886, 910, 506 P.2d 20 (1973) ). In addition, the escrow agent, as a fiduciary to all parties to the escrow “ must conduct the affairs with which [it] is entrusted with scrupulous honesty, skill, and diligence. ” Denaxas , 148 Wn.2d at 663 ( alteration in original, internal quotation marks omitted ) (quoting Nat’l Bank , 81 Wn.2d at 910) . Further, WashingtonNo. 47567

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law does not impose a duty on escrow agents independent of the parti es ’ instructions. Denaxas , 148 Wn.2d at 663

- 64. Washington follow s the objective manifestation theory of contracts. Hearst Commc ’ ns, Inc. v. Seattle Times Co. , 154 Wn.2d 493, 503

- 0 4, 115 P.3d 262 (2005). W hen interpreting contracts, the subjective inte nt of the parties is generally irrelevant if the intent can be determined from the actual words used. Hearst , 154 Wn.2d at 504

. We do not interpret what was intended to be written but what was written, and w e generally give words in a contract their ordi nary, usual, and popular meaning unless the entirety of the agreement clearly demonstrates a contrary intent.
Hearst , 154 Wn.2d at 504

. C ontractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a parti cular set of facts. Queen Anne Park Homeowners
Ass ’ n v. State Farm Fire & Cas. Co. , 183 Wn.2d 485 , 489, 352 P.3d 790 (2015) , aff’d , 633 Fed. Appx. 415 (9th Cir

. 2016)

. T he h oldback a greement required that invoices a long with authorization to pay the invoices may only be made to First American by Bruce Kirschenbaum and that any remaining funds on May 12, 2006 shall be distributed to Sevier by cashier ’ s check or wire transfer. Therefore, the
h oldback a greement is not ambiguous because there is only one reasonable meaning to the instructions provided to First American. While Proterra argues that First American only had authorization, without an obligation, to pay the invoices directed by Kirschenbaum, authorization alone is sufficient when escrow agen ts do not have a duty to interpret the parties ’ instructions. Kirschenbaum authorized First American to make two payments to Olsen Engineering and provided supporting invoice s . First American paid the invoices as authorized and distributed all remaining fun ds to Sevier via wire transfer , asNo. 47567

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instructed under the h oldback a greement. Furthermore , First American may have been liable under the terms of the holdback agreement if it had refused to make the authorized payments.
B. D ISBURSEMENT OF F UNDS Proterr a argues that there are genuine issues of material fact as to whether First American was negligent in paying bills unrelated to final engineering when it dispersed the funds without any investigation a s to the nature of the expenses and that First American was to distribute the remaining funds only after Sevier provided Proterra with a final accounting of expenses

. We disagree.
A n escrow agent or holder becomes liable to his principals for damage proximately resulting from his breach of the instructions, or from his exceeding the authority conferred on him by the instructions. Equity Investors , 81 Wn.2d at 910. Although Proterra argues that First American had only the authority to pay and not an obligation to pay, there is no instruction that imposes a duty upon First American to investigate or otherwise authenticate the nature of the expenses paid. The unambiguous instructions provide only that First American has the authority to pay invoices upon receipt of the invoice and authorization to pay by Kirschenbaum . Additionally, while Proterra argues that when read “ in
context, ” First American was only authorized to distribute “ rem aining funds ” after Sevier had provided Proterra with a final accounting, this requirement was not contained in the instructions. Br. of Appellant at 11. First American was not instructed to withhold disbursement of funds pending a final accounting. O n the contrary, First American was instructed only to disperse any remaining fundsNo. 47567

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to Kirschenbaum via cashier ’ s check or wire transfer on May 12, 2006. First American complied with the unambiguous language of the h oldback a greement. ATTORNEY FEES First American includes a request for reasonable attorney fees and costs under RAP 18.1 and argues that the escrow instructions provide that Proterra and Sevier agreed jointly and severally to pay First American ’ s reasonable attorney fees and costs incurred in c onnection with or arising out of escrow. We agree and award First American ’ s reasonable attorney fees and costs on appeal

. Fees may be awarded where there is a contractual provision or statute for awarding such fees. Thompson v. Lennox , 151 Wn. App. 479, 491, 212 P.3d 597 (2009). “ ‘A contractual provision for an award of attorney fees at trial supports an award of attorney fees on appeal under
RAP 18.1. ’ ” Thompson , 151 Wn. App. at 491 (quoting W. Coast Stationary Eng’rs Welfare Fund , 39 Wn. App 466, 477 , 694 P.2d 1101 (1985) )

. The e scrow i nstructions provide that “ [Proterra] agrees jointly and severally with [Sevier] to pay Escrowee all costs, damages, judgments and expenses suffered, expended or incurred by Escrowee in connection with or arising ou t of this escrow, including but not limited to reasonable attorney fees. ” CP at 23. The y also contemplated addi tional instructions and provide that “ any additional instructions given to the Escrowee herein shall be presented in writing . . . [including] instructions by third parties which are necessary for the completion of this escrow and are, therefore, made a part hereof. ” CP at 23. Thus, the h oldback a greement is made a part of the

e scrow i nstructions and the fee provision applies to award First Ame rican reasonable attorney fees and costs

.No. 47567

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We hold that there are no genuine issues of material fact and affirm the trial court ’ s order granting First American s ummary judgment. Proterra offers no evidence that First American breached its fiduciary duty or engaged in the unauthorized practice of law when it failed to use their standard form or when Snyder instructed Kirschenbaum as to its requirements for a holdback agreement

. Proterra also offers no evidence that Snyder actually drafted t he agreement . We further hold that First American ’ s duty was defin ed by the e scrow i nstructions, the h oldba ck

a greement is not ambiguous, and First American did not breach its duty when it complied with the

e scrow i nstructions and paid invoices authorized by Kirschenbaum. We award First American ’ s reasonable attorney fees and costs on appeal as they arise out of the escrow instructions

. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, bu t will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

SUTTON, J. We concur:

BJORGEN, C.J.

MAXA, J.