LINCOLN BEAUREGARD and LESLIE BEAUREGARD, a marital couple, Appellants/Cross-Respondents,
ANNA RILEY, an individual, Respondent/Cross-Appellant.
and Leslie Beauregard appeal the summary judgment dismissal
of their claims against their former real estate agent, Anna
Riley, for negligence, breach of statutory real estate broker
duties, and violations of the Washington Consumer Protection
Act (CPA). The Beauregards are unable to establish
that Riley's actions were the proximate cause of their
claimed injuries. Accordingly, we affirm dismissal of their
cross-appeals the trial court's determination that Riley
owed and breached a statutory duty to communicate a rental
inquiry to the Beauregards. Riley did not have a duty to
communicate rental inquiries under RCW 18.86.030(1)(c).
Therefore, we reverse the trial court's conclusion to the
Beauregards retained Riley to list and sell their property in
Bellevue, Washington. Riley is a realtor with Windermere Real
Estate/East, Inc. in Bellevue. During Riley's initial
meeting with the Beauregards at their Bellevue home, the
Beauregards mentioned they were also considering another real
estate broker. Ultimately the Beauregards chose Riley because
she estimated the property could be listed at $2, 488, 000,
higher than the other agent's estimate. Riley recalls
merely "shar[ing] with them that other clients . . .
were buying a similar sized home one block over that was
listed at $2, 488, 000" and offered that amount as an
example, only after the Beauregards insisted on her opinion.
The Beauregards maintain that Riley inflated the price to
induce them to enter the Exclusive Sale and Listing Agreement
(the Listing Agreement).
Beauregard told Riley that, if they did not get offers within
their desired price range, they were also interested in
renting their property. Riley concedes this alternative was
discussed, but the Listing Agreement contracts Riley to
"sell" the property, and specifically indicates
that the "[f]irm need not submit to Seller any offers to
lease, rent, execute an option to purchase, or enter into any
agreement other than for immediate sale of the
parties signed the Listing Agreement on November 11, 2015.
The Listing Agreement did not include a list price, but
listed the property as viewable by "Appointment,"
"Call Listing Office," and through the
"Multiple Listing Service (MLS) Keybox." Riley also
listed the property as owner-occupied despite it being vacant
because for "premier properties," Riley prefers to
go to the property before a showing, turn on the lights and
heat, discuss key features of the home with the buyer's
broker, and ensure the doors are locked after the showing.
Additionally, Riley maintains that the property was not truly
vacant because some of the Beauregards' furniture was
present, and a vacant property is more susceptible to theft.
The Beauregards maintain that Riley never fully explained to
them that the property was listed as owner-occupied or as
viewable by appointment, and had they known, the Beauregards
would have never agreed to those terms. Those terms, however,
were clearly listed in the Listing Agreement signed by the
December 4, 2015, Riley e-mailed the Beauregards,
recommending a list price between $1, 950, 000 and $2, 150,
000. Ms. Beauregard replied that she thought they had
discussed a higher starting price range. Riley arrived at the
suggested list price after conducting market research, which
included two comparable properties in the same neighborhood.
The first was listed for $2, 488, 000, but sold for $2, 285,
000. The second was listed for $2, 249, 000, but sold for $2,
175, 000. The property is a stacked three level floorplan,
lacking an open floorplan, and with recent market preference
trending towards open floorplans, Riley suggested a lower
list price to compensate for the market trends. The
Beauregards disagreed with Riley's recommendation and the
property was listed for $2, 288, 000 with a $5, 000
"paint/deck stain credit" and went active on
December 9, 2015.
parties characterize the discussions about listing the
property over the holiday period differently. The Beauregards
maintain they contacted Riley about delisting the property
over the holiday season, but Riley never responded because
she was vacationing in France. Riley maintains that there was
less inventory on the market, and listing over the holiday
period would capitalize on buyers trying to relocate before
the New Year.
the months following the initial listing, Riley's office
hosted at least 18 open houses at the property. No
prospective buyers submitted offers during that period. The
Beauregards contend that the lack of offers was because Riley
failed to follow-up with prospective buyers and used old
photographs in the listing. At several points during her
representation, Riley recommended that the Beauregards drop
the list price because other nearby properties had recently
lowered their prices and attracted buyers. On February 3,
2016, the Beauregards agreed to reduce the price to $2, 173,
000, stating "[w]e had always felt the 2.28 was
ambitious, but wanted to try it." Riley recommended a
further price reduction on March 20, 2016, to $1, 998, 000,
but the Beauregards disagreed.
March 6, 2016, the Beauregards notified Riley they wanted to
switch real estate agents because they felt Riley was not
following up with prospective buyers and had too many other
listings in the Bellevue area. Riley convinced the
Beauregards to give her a second chance. Riley and the
Beauregards made several changes to the property and updated
the listing photos, which showcased the re-sodded backyard,
the exterior paint job, and updated interior photos.
the Beauregards terminated their Listing Agreement with Riley
in April 2016, and entered a new agreement with Nancy Klinck.
The property sold on August 17, 2016 for $1, 850, 000.
Beauregards filed their complaint alleging Riley breached
statutory duties, was negligent, and violated the CPA. The
Beauregards advanced a theory that Riley's cumulative
breaches caused their property to remain on the market for
too long, leading to low offers from prospective buyers. The
Beauregards claimed that Riley fraudulently induced them to
enter the Listing Agreement by inflating the value of their
property to $2, 488, 000, which was an unfair and deceptive
act under the CPA.
discovery, the Beauregards recovered an e-mail inquiry from
Mark Williams, another realtor with Windermere, sent to Riley
on April 6, 2016. Williams inquired whether the Beauregards
would be interested in renting as opposed to selling because
he had a client looking to move in mid-June from San
Francisco, and rent a 2000 sq/ft house for $3, 500 a month.
Riley replied that the Beauregards were not interested in
renting the property. Ultimately, the prospective renter
never rented a property in Bellevue, and stayed in a hotel
only for a couple of months before moving back to San
Francisco. The Beauregards contend that Riley was required by
RCW 18.86.030(1)(c) to inform them of this "offer"
to rent their property, failed to do so, and if this
"offer" was conveyed, they would have accepted.
moved for summary judgment. In response, the Beauregards
retained Lawand Anderson, a realtor and attorney, as an
expert. The Beauregards filed a cross-motion for summary
judgment. Riley filed a motion to strike the declaration of
Anderson, contending Anderson was not qualified as an expert
and her opinion was based on speculation.
trial court denied the motion to strike, indicating "the
basis of speculation may be argued as part of the summary
judgment motion." The trial court granted Riley's
motion for summary judgment as to the Beauregards' CPA
claim and negligence claim, but denied summary judgment as to
the Beauregards' statutory duties claim, finding Riley
had a duty to convey the rental inquiry and breached it, but
reserved further ruling on causation and damages.
filed a second motion for summary judgment on the issue of
causation, contending the Beauregards were unable to prove
that Riley proximately caused the Beauregards' claimed
injuries. The trial court granted Riley's second motion