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Sing v. John L. Scott Inc.

August 9, 1996


Superior Court of Kitsap County. Superior Court Docket No. 91-2-01059-7. Date Filed In Superior Court: June 10, 1994. Superior Court Judge Signing: James Roper.

Written By: Turner, J., Concurred In By: Morgan, J., Bridgewater

The opinion of the court was delivered by: Turner

TURNER, J. -- A jury found that John L. Scott, Inc., violated the Consumer Protection Act (CPA) and judgment was entered in favor of Sing, a prospective purchaser. On appeal, Scott claims that the evidence was insufficient to establish a CPA violation; its actions were exempt from the CPA; and the trial court erred in awarding attorney fees and in instructing the jury. We hold that Scott is not exempt from the CPA because the conduct of its agents was not specifically permitted by any statute. We also hold that there was sufficient evidence that Scott violated the CPA, and there was no instructional error. The trial court's adjustment of the attorney fees award for the contingent nature of the case was proper, but it erred in not segregating the fees associated with the CPA action from those associated with other claims. Accordingly, we affirm the jury verdict in favor of Sing, but remand the case for segregation of attorney fees.


This case stems from transactions between John L. Scott, Inc., (Scott) a real estate brokerage, its real estate agents and Peter Sing, a real estate investor and prospective purchaser of real estate listed with Scott. Jody Prongay, Bob Pennock and Maureen Buckley are all licensed real estate agents for Scott, employed in the Bainbridge Island office.

In July 1987, the Rudds listed their undeveloped Bainbridge Island property with Scott through Jody Prongay. The listing price was $45,000. On August 16, 1989, Bob Pennock showed the Rudd property to Peter Sing, a real estate investor. Sing was interested in purchasing the property and indicated that he would pay full price, or more, to acquire it because if trees were cut, the property would have a view of Seattle. Pennock helped Sing prepare a purchase offer of $41,000. Sing's offer allowed himself 45 days after mutual acceptance to determine whether the property was suitable for his intended use.

On Friday, August 18, 1989, Pennock met with Jody Prongay and the Rudds to present Sing's offer to purchase the property. The Rudds made a written counteroffer that changed the purchase price to $45,000, increased the earnest money deposit, and shortened time limits on the closing period and on Sing's suitability determination. That evening, Pennock met with Sing to relay the Rudds' counteroffer Sing indicated that he would accept the counteroffer, but because he was leaving for the weekend, he preferred to complete the paperwork on Sunday evening or Monday morning. According to Sing, Pennock conveyed no sense of urgency about signing. On August 19, 1989, Pennock told Prongay that Sing would be unavailable over the weekend but that he would accept the offer Sunday evening or Monday morning.

On August 20, 1989, Scott agent, Maureen Buckley, and her husband, presented a written offer to purchase the Bainbridge Island property for $42,000. The Buckley offer contained shorter closing and suitability determination periods than the Sing offer.

The record is not clear whether Buckley had seen Sing's offer. Apparently, Buckley and Prongay had known each other for many years and Prongay's desk was adjacent to Buckley's office. Prongay testified that she kept her listing file, which included the Sing offer, on her desk. At trial, Buckley stated that a couple of weeks before she made the offer to purchase, she looked for a plat map in Prongay's listing file but that it was not there. She asked Prongay if she had any maps and Prongay gave her one. Aside from this request, Buckley and Prongay say they did not talk about the Rudd property. Pennock also says he did not talk with the Buckleys about the property, or about the terms of the Rudd/Sing offer and counteroffer. Buckley was, nonetheless, informed that the Rudd real estate might be valuable view property. *fn1

The Rudds preferred the Buckley offer because it provided less time for a suitability determination and less delay before closing. But they also wanted full price. Thus, they desired to make a counteroffer to the Buckleys.

Before the Rudds could do so, they had to find out if Sing had accepted their previous counteroffer. Accordingly, Prongay called Pennock, who stated that Sing had not come back into town and had not yet signed the counteroffer. Prongay then informed Pennock that the Rudds were withdrawing their counteroffer and instructed Pennock to notify Sing as soon as possible. *fn2 Pennock called Sing's home and left a message that the counteroffer had been withdrawn. The Rudds then made a counteroffer of $45,000 that the Buckleys accepted.

The sale closed in September 1989. In February 1990, the Buckleys resold the property for $137,500. At the time of trial, the tax assessor's records indicated that the property's value was approximately $182,520.

Sing sued Scott and the Buckleys, alleging intentional interference with a contract of business expectancy, misrepresentation, and violation of the Consumer Protection Act (CPA). At the commencement of trial, Sing voluntarily dismissed his misrepresentation claim. The remaining claims were tried before a jury, which found by special verdict that: (1) Sing did not have a valid contractual relationship or business expectancy with the probability of future economic benefit; (2) Scott violated the CPA; and (3) Maureen Buckley did not violate the CPA. The jury found that Scott's conduct proximately caused damages to Sing in the amount of $25,000.

Subsequently, the trial court denied Scott's motion for judgment as a matter of law, entered judgment on the verdict, and awarded an additional $7,500 in treble damages, plus $50,863.50 in attorney fees and $122.60 in costs. Scott appealed.


Consumer Protection Act Cause of Action

Scott claims that the trial court should have granted its motion for judgment as a matter of law because Sing failed to establish the elements of a CPA action, and because its conduct was exempt from the CPA, RCW 19.86.170. We disagree.

In reviewing a trial court's denial of a motion for judgment as a matter of law, the appellate court applies the same standard as the trial court. *fn3 A motion for judgment as a matter of law should not be granted unless, viewing the evidence in the light most favorable to the nonmoving party, the court can say that there is neither evidence, nor a reasonable inference therefrom, sufficient to sustain the verdict. *fn4 "If there is any justifiable evidence upon which reasonable minds might reach Conclusions that sustain the verdict, the question is for the jury." *fn5

We conclude that, viewing the evidence in a light most favorable to Sing, there was sufficient evidence and reasonable inferences therefrom to sustain a verdict for Sing on his CPA cause of action.

To establish a violation of the CPA, a plaintiff must establish five elements: (1) an unfair or deceptive act or practice; (2) occurring within trade or business; (3) affecting the public interest; (4) injuring the plaintiff's business or property; and (5) a cause relation between the deceptive act and the resulting injury. *fn6 Scott argues that Sing failed to establish prongs (1), (3), and (4) of the above test. Whether a particular action ...

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