[No. 34446-7-II. Division Two. January 2, 2008.]
[1] Appeal Findings of Fact Assignment of Error Supporting Argument Valid Ground Necessity. An assignment of error to a finding of fact must be supported by a valid ground on which the finding may be challenged. [2] Appeal Findings of Fact Assignment of Error Supporting Argument Valid Ground Necessity of Finding. The necessity for a finding of fact is not a valid ground on which the finding may be challenged. It is within the trial court's sound discretion to weigh the evidence in the record and to enter judgment on those facts it deems important. [3] Appeal Findings of Fact Unnecessary Findings Prejudice Necessity. A trial court's entry of unnecessary findings of fact is not grounds for reversing a judgment if no party is prejudiced by the error. [4] Courts Jurisdiction Existence Deprivation Private Contract Validity. If a court has jurisdiction over a matter, parties cannot deprive the court of that jurisdiction by contract. [5] Arbitration Contractual Agreement Scope Deprivation of Court Jurisdiction Validity In General. An arbitration agreement cannot deprive a trial court of jurisdiction to rule on issues properly before it, although an agreement may render erroneous a failure to stay the proceedings. [6] Appeal Findings of Fact Review Substantial Evidence What Constitutes In General. A trial court's findings of fact are reviewed for substantial evidence. Substantial evidence is evidence viewed in the light most favorable to the respondent that would persuade a fair-minded, rational person of the finding's truth. [7] Appeal Findings of Fact Review Weight of Evidence Credibility Determinations. An appellate court reviewing a trial court's findings of fact does not reweigh the evidence or render judgments regarding witness credibility; that is the exclusive province of the trier of fact. [8] Appeal Findings of Fact Failure To Raise Valid Challenge Effect. An appellate court will accept a trial court's findings of fact to which no valid challenges are raised. [9] Appeal Conclusions of Law Review Support by Findings Standard of Review. An appellate court reviews de novo whether a trial court's findings of fact support its conclusions of law. [10] Arbitration Contractual Agreement Enforcement Waiver. A party to an arbitration clause may waive its enforcement. [11] Waiver What Constitutes In General. Waiver is the voluntary and intentional relinquishment of a known right. [12] Contracts Waiver Contractual Right Implied Waiver Conduct Test. Waiver of a contractual right may be found by conduct that is inconsistent with any other intention but to forego the right. [13] Arbitration Contractual Agreement Scope Selection of Forum. A contractual arbitration clause that governs only arbitration and not venue or jurisdiction is not a forum selection clause. [14] Arbitration Contractual Agreement Enforcement Intent of Parties Defendant Expression in Answer Sufficiency. Language in a defendant's answer stating that the plaintiff's claims "are barred by the doctrine of waiver," which the defendant later argues was made in reference to language in a contractual arbitration clause that "the parties are waiving their right to seek remedies in court, including the right to a jury trial," is insufficient to establish an intention to seek enforcement of the arbitration clause. [15] Arbitration Contractual Agreement Waiver Implied Waiver Conduct. A defendant impliedly waives a contractual arbitration clause that would otherwise apply to the action where, over a lengthy period of time, the defendant answers the plaintiff's complaint, engages in discovery, deposes witnesses, submits and answers interrogatories, and prepares fully for trial, but never proposes a court order to stay the action to allow the parties to arbitrate. [16] Limitation of Actions Death Survival Actions Accrual of Cause Discovery Rule. The statutory time limitation applicable to a survival action commences at the time the decedent or the decedent's personal representative discovers or, in the exercise of due diligence, should have discovered the material elements of the cause of action and that some actual damage has been sustained as a result of the acts underlying the cause. Knowledge acquired by persons other than the decedent before the decedent's death does not trigger accrual of the decedent's right of action under the discovery rule. [17] Limitation of Actions Defense Burden of Proof Affirmative Defense. The failure to commence an action within the time period specified by a statutory time limitation is an affirmative defense; a party asserting the defense has the burden of proving the facts that establish it. [18] Pleading Amendment Review Standard of Review. A trial court's denial of a motion to amend a pleading is reviewed for manifest abuse of discretion. [19] Pleading Amendment Addition of Claim Review Prejudice. A party's motion to amend its pleading to add a claim or defense generally should be denied if the amendment would prejudice an opposing party. [20] Pleading Amendment Addition of Defense Prejudice to Plaintiff Effect. A defendant's motion to amend his or her answer to add a defense after trial has concluded is properly denied if the plaintiff would be unfairly prejudiced by the amendment. [21] Appeal Conclusions of Law Review Unsupported Findings of Fact Remand for Reconsideration. When an appellate court determines that a trial court's findings of fact underlying a conclusion of law are unsupported by the evidence in the record, the court may remand the question back to the trial court for reconsideration. [22] Securities Regulation "Suitability Rule" Statutory Provisions Rules of Fair Practice. Registered securities dealers must comply with the "suitability rule" as codified at RCW 21.20.702 and as embodied in the National Association of Securities Dealers Rules of Fair Practice. [23] Appeal Review Issues Raised by Appellate Court Issue Not Previously Raised Issue Affecting Right of Action. An appellate court may raise and rule on whether a party has a right to maintain an action even though the issue was not expressly identified by the parties and was not raised at trial. [24] Securities Regulation "Suitability Rule" Private Right of Action In General. The Securities Act of Washington (chapter 21.20 RCW) does not provide a private right of action for a violation of the "suitability rule" of RCW 21.20.702; nor may a civil penalty under RCW 21.20.430 be assessed for a violation of the "suitability rule." [25] Securities Regulation Fraudulent Sales Proof Noncompliance With "Suitability Rule" In General. For purposes of a common law negligence action against a registered securities broker, the broker's noncompliance with the "suitability rule" of RCW 21.20.702 may be considered as evidence of negligence; i.e., the "suitability rule" may set a securities broker's common law duty of care toward a client. [26] Securities Regulation "Suitability Rule" Court's Discussion of Violation Effect. A trial court's discussion of a registered securities broker's violation of the "suitability rule" of RCW 21.20.702 in terms of a private right of action is harmless if the court provides the plaintiff with a remedy that is authorized by law. [27] Appeal Harmless Error Prejudice Nonprejudicial Error. Error without prejudice is not grounds for reversing a judgment. [28] Securities Regulation "Suitability Rule" Independent Cause of Action Harmless Error Valid Alternative Grounds for Remedy. A trial court's treatment of a registered securities broker's violation of the "suitability rule" of RCW 21.20.702 as an independent cause of action is harmless error if the remedy awarded by the court also is based on a valid alternative ground. [29] Securities Regulation "Suitability Rule" What Constitutes. The "suitability rule" of RCW 21.20.702 requires a securities broker-dealer, before recommending a transaction, to have reasonable grounds for believing, on the basis of the information furnished by the customer, and after reasonable inquiry concerning the customer's investment objectives, financial situation, and needs, that the recommended transaction is not unsuitable for the customer. The "suitability rule" thus requires a broker to make a customer-specific determination of suitability and tailor transaction recommendations to the customer's financial profile and investment objectives. [30] Securities Regulation "Suitability Rule" Compliance Factors Financial Status and Investment Objectives Either or Both. In seeking to comply with the "suitability rule" of RCW 21.20.702, a securities broker-dealer must consider both a customer's financial status and investment objectives. Neither factor, alone, is dispositive. Simply because a customer can afford to put funds towards a risky investment does not give the broker-dealer license to disregard the customer's investment objectives. [31] Securities Regulation "Suitability Rule" Violation Factors Financial Status and Investment Objectives. For purposes of determining whether a securities broker-dealer breached its duty of due care and fair dealing to a customer by failing to follow the "suitability rule" of RCW 21.20.702 in a particular circumstance, a court must consider both the customer's financial status and the customer's investment objectives. [32] Appeal Findings of Fact Review Erroneous Identification as Conclusion of Law Effect. A finding of fact mislabeled as a conclusion of law is treated as a finding of fact. [33] Appeal Conclusions of Law Review Support by Findings Necessity. A trial court's conclusions of law must be supported by sufficient findings of fact. [34] Appeal Assignments of Error Argument Necessity Nature of Alleged Error. An appellant claiming error must inform the court of the nature of the alleged error. [35] Interest Postjudgment Interest Statutory Provisions Scope All Judgments. Former RCW 4.56.110(3) (1989) requires a court to award postjudgment interest on any "judgment." [36] Appeal Review Issues First Raised in Reply Brief In General. Issues raised for the first time in a reply brief are untimely and are waived. [37] Costs Attorney Fees Review Standard of Review. A trial court's award of attorney fees is reviewed for an abuse of discretion. A trial court abuses its discretion if it exercises its discretion on untenable grounds or for untenable reasons. [38] Consumer Protection Action for Damages Attorney Fees On Appeal In General. Under RCW 19.86.090, a party who prevails on appeal on a claim for damages under the Consumer Protection Act (chapter 19.86 RCW) is entitled to an award of attorney fees for the appeal. [39] Contracts Costs Attorney Fees Contractual Right On Appeal In General. A contractual provision for an award of attorney fees at trial will support an award of attorney fees on appeal. [40] Costs Attorney Fees Minor Action for Damages Appeal Statutory Provisions. RCW 4.84.290 authorizes an award of attorney fees on appeal to a prevailing party in a minor action for damages. Nature of Action: A decedent's estate sought damages from a registered securities broker for (1) breach of fiduciary duty, (2) breach of the duty of good faith and fair dealing, (3) violation of the Consumer Protection Act, (4) securities fraud in violation of the Securities Act of Washington, and (5) violation of the "suitability rule" contrary to RCW 21.20.702. Superior Court: The Superior Court for Clallam County, No. 99-2-00488-7, Kenneth D. Williams, J., on January 23, 2006, entered a judgment in favor of the estate on most but not all of its claims. Court of Appeals: Holding that, although the trial court could not grant Securities Act remedies for a violation of the "suitability rule," the trial court properly awarded damages on the basis of other violations and the defendant was not prejudiced by the award of Securities Act remedies; that the plaintiff was properly awarded attorney fees at trial and is entitled to an award of attorney fees on appeal; and that the trial court's findings of fact were insufficient to support the conclusion that certain investments, as evidence of the defendant's alleged violation of his duty of care and fair dealing toward the plaintiff, were not unsuitable, the court affirms the judgment in part, reverses it in part, and remands the case for further proceedings. Christopher M. Constantine- (of Counsel, Inc., PS), for appellants. Carl J. Carlson- (of Carlson & Dennett, PS), for respondent. Ά1 QUINN-BRINTNALL, J. David Ramsden, a registered securities broker, recommended that 75-year-old G. Jerome Ives buy investments that nearly depleted all of his liquid assets. Ramsden also induced Ives to personally loan Ramsden funds to purchase a home for a very low interest rate and then defaulted. Ives passed away and, on July 1, 1999, the Ives estate sued Ramsden, alleging: (1) breach of fiduciary duty, (2) breach of the duty of good faith and fair dealing, (3) a violation of the Consumer Protection Act (CPA), chapter 19.86 RCW, (4) securities fraud contrary to RCW 21.20.010, and (5) violation of the suitability rule contrary to RCW 21.20.702. The trial court found that Ramsden violated his fiduciary duties and duties of good faith and fair dealing, committed securities fraud, violated the CPA, and violated the suitability rule. Both parties appeal. Ά2 Ramsden appeals, arguing that (1) the parties agreed to resolve any dispute through arbitration and he did not waive the parties' arbitration agreement, (2) the statute of limitations bars this action, (3) the trial court should have allowed him to amend his answer to raise a failure-to-mitigate-damages defense, and (4) he is entitled to attorney fees below and here as the prevailing party. The Ives estate cross-appeals, arguing that the trial court erred when it found that four limited partnerships did not violate the suitability rule, RCW 21.20.702. FACTS BACKGROUND Ά3 The trial court found the following facts. For reasons discussed below, they are undisputed and verities on appeal. Ά4 Ramsden is a securities salesperson registered with the National Association of Securities Dealers (NASD) and must comply with the NASD rules of fair practice and with the Securities Act. He associated with broker-dealer firms as an independent contractor and specialized in marketing limited partnership interests. Ramsden has a law degree but has never practiced law. Ά5 Around 1988, Ramsden moved to Sequim and befriended Ives, who was then 75 years old. A. LIMITED PARTNERSHIPS AND ANNUITY Ά6 Ramsden sold Ives five limited partnerships and an annuity that were speculative and illiquid. Ά7 In 1993, the two men executed the last of the five limited partnerships, which included one for Texas Keystone. On the application, Ramsden intentionally misrepresented Ives's annual income, net worth, investment goals, and investment experience in order to induce Texas Keystone to accept Ives's offer even though he was not a qualified investor under the company's criteria. Ives was then 80 years old and the investment nearly depleted his remaining liquid mutual funds. B. PERSONAL LOANS Ά8 Ramsden also borrowed money from Ives to finance his own home. In 1990, Ramsden borrowed $40,000 from Ives and $30,000 from another individual. The loan matured in one year and was supposedly secured by a deed of trust on Ramsden's home. Ramsden withdrew the money from Ives's mutual funds. In lieu of interest, Ramsden promised to replace the mutual funds and any interest that Ives would have received had he kept the money invested in mutual funds. Ramsden did not repay Ives at the year's end, nor did he execute a deed of trust. Ά9 Instead of repaying Ives, Ramsden executed a 1991 promissory note. In this note, he added $2,000 to the principal already owed. That "payment" equaled a five percent annual interest rate on the $40,000 loan, substantially lower than the market rate for similar mortgages. In addition, in the 1991 note, Ramsden borrowed $30,000 from Ives to pay off the other individual who had financed Ramsden's home. At this point, over 90 percent of Ives's assets were illiquid. The 1991 promissory note totaled a $72,000 debt on a four-year term. The note was again supposedly secured by a deed of trust to Ramsden's home. Ά10 Four years passed and Ramsden still had not paid the debt. Instead, he rolled the debt over into a 1995 promissory note totaling $86,900, including unpaid interest from the previous note. The 1995 note contained the following terms: (1) 8 percent interest (where the market rate was between 12 and 14 percent), (2) a maturity date of 2006 (when Ives would be 93 years old), (3) no acceleration clause, and (4) recited consideration of the deed of trust executed on the 1990 note. Ramsden never provided or recorded a deed of trust. He presented the loan offers as investment opportunities. C. IVES'S DEATH AND THE IVES ESTATE'S ACTIONS Ά11 Ives died in 1996. Ives's son was appointed personal representative of Ives's estate on July 9, 1996. When Ives's son learned of the questionable investments, he sold many at a substantial loss, reasonably concluding that the sales would most benefit the Ives estate. Ά12 Ives's son also filed a complaint with the Department of Financial Institution's Securities Division (DFI), which administers the Securities Act. RCW 21.20.450(1). In a consent order, DFI found that Ramsden had engaged in dishonest and unethical practices because he recommended unsuitable investments and borrowed money from Ives. Ramsden neither admitted nor denied the findings of fact or conclusions of law in the consent order. PROCEDURE Ά13 On July 1, 1999, the Ives estate sued Ramsden, alleging: (1) breach of fiduciary duty, (2) breach of the duty of good faith and fair dealing, (3) a violation of the CPA, (4) securities fraud contrary to RCW 21.20.010, and (5) violation of the suitability rule contrary to RCW 21.20.702. (1) In recommending to a customer the purchase, sale, or exchange of a security, a broker-dealer, salesperson, investment adviser, or investment adviser representative must have reasonable grounds for believing that the recommendation is suitable for the customer upon the basis of the facts, if any, disclosed by the customer as to his or her other security holdings and as to his or her financial situation and needs. (2) Before the execution of a transaction recommended to a noninstitutional customer, . . . a broker-dealer, salesperson, investment adviser, or investment adviser representative shall make reasonable efforts to obtain information concerning: (a) The customer's financial status; (b) The customer's tax status; (c) The customer's investment objectives; and (d) Such other information used or considered to be reasonable by the broker-dealer, salesperson, investment adviser, or investment adviser representative in making recommendations to the customer. RCW 21.20.702. Ά14 Ramsden represented himself. For three and a half years, he engaged fully in discovery. But on the eve of trial, he moved to dismiss on the grounds that the parties had an arbitration agreement that he now wished to enforce and that the statute of limitations had run. The trial court held that Ramsden waived his right to enforce the arbitration agreement and that the statute of limitations had not run because Ives did not discover the claim before his death and Ives's son brought the claim within three years of his appointment as estate representative. At the trial's close, Ramsden moved to amend his answer to include a failure-to-mitigate-damages defense, but the trial court denied the motion on the ground that the amendment would prejudice the Ives estate. Ά15 The trial court concluded that: (1) the first four limited partnership transactions did not violate the suitability rule because Ives had sufficient liquid assets at the time and, thus, Ramsden should incur no liability for recommending them; (2) the Texas Keystone limited partnership was not a suitable investment and Ramsden committed securities fraud, was negligent, and violated the CPA by recommending it and falsifying Ives's application; and (3) the personal loans for Ramsden's home constituted a breach of Ramsden's fiduciary duties, professional duties, and ethical duties, and were unsuitable investments. Accordingly, the trial court awarded the Ives Estate damages and attorney fees and costs. Ά16 Ramsden's appeal requires us to address whether (1) Ramsden waived his contractual right to arbitration, (2) the statute of limitations barred this action, and (3) the trial court erred by denying Ramsden's motion to amend his answer to include a failure-to-mitigate-damages defense. And, in the Ives estate's cross-appeal, whether the trial court properly applied the "suitability rule" for broker-dealers. We also analyze whether attorney fees were proper below or should be awarded on appeal. ANALYSIS SCOPE OF REVIEW ARBITRATION CLAUSE Ά22 Ramsden argues that the trial court erred when it held that he waived his right to enforce an arbitration clause and denied his motion to dismiss on this basis. The Ives estate agrees that the parties entered into an arbitration agreement STATUTE OF LIMITATIONS Ά27 Next, Ramsden asserts that the statute of limitations bars this action. The Ives estate responds that the three-year statute of limitations for fraud and securities violations had not accrued before Ives's son was appointed personal representative for the Ives estate. The Ives estate argues that it brought those claims shortly before the statute of limitations ran. We agree with the Ives estate. Ά29 Here, the Ives estate's claims of fraud and securities violations had a statute of limitation of three years after the cause of action accrued. RCW 21.20.430(4)(b); RCW 4.16.005, .080(4). Under the discovery rule, the statute of limitation for these actions begins only when the aggrieved party discovers, or should have discovered by due diligence, the fact of fraud or securities fraud and sustains some actual damage as a result. RCW 21.20.430(4)(b); First Md. Leasecorp. v. Rothstein, 72 Wn. App. 278, 281-82, 864 P.2d 17 (1993) (citing RCW 4.16.080(4)). Ά30 Ramsden's sole factual argument is that, in June 1996, Ives's son and daughter-in-law were "aghast" when they learned that Ives had invested in limited partnerships with Ramsden. Br. of Appellant at 47. But the trial court rejected this factual contention, finding that Ramsden offered no substantial evidence to support his theory that Ives or the Ives estate's representative discovered the violations more than three years before he commenced the action in July 1999. This is a credibility determination not subject to our review. Affordable Cabs, 124 Wn. App. at 367. Further, Ramsden presented no evidence that Ives's relatives discovered they had a cause of action. To discover a cause of action, Ives's son and daughter-in-law had to learn that the investments were not only unsuitable, but also that they had damaged the Ives estate. Undisputed trial evidence revealed that Ives's son did not investigate his father's investments until after he was appointed personal representative of the estate and, accordingly, could not have known whether the investments had actually damaged the estate until he completed his investigation. Ά31 And Ives's son and his daughter-in-law were not "the aggrieved party" to these actions in July 1996, and, thus, their knowledge, if any, could not trigger accrual under the discovery rule. RCW 4.16.080(4); see also RCW 21.20.430(4)(b) (indicating that accrual occurs in a securities claim when the plaintiff discovered, or reasonably should have discovered, the violation). The trial court properly limited the scope of its inquiry to whether and when Ives or the Ives estate's representative knew or reasonably should have known all material elements of these causes of action. Ά32 Ives's son brought this action less than three years after he was appointed personal representative to the estate. Even assuming that Ives's son knew of the Ives estate's cause of action on the day that he was appointed personal representative and that knowledge is imputed to the Ives estate, three years had not elapsed before the Ives estate brought the action. Accordingly, the statute of limitations had not run on these claims of fraud and securities fraud. And Ramsden's factual argument does not affect the CPA and written contract claims, which had four- and six-year statutes of limitations, respectively. RCW 4.16.040(1); RCW 19.86.120. The statute of limitations does not bar the Ives estate's action. ANSWER'S AMENDMENT Ά34 Ramsden also argues that the trial court erred when it denied his motion to amend his answer to add the failure-to-mitigate-damages defense. Ά37 Essentially, the trial court found that the tardy amendment would unfairly prejudice the Ives estate. The record reveals that the Ives estate did not present evidence or a case theory to rebut a claim that Ives failed to mitigate damages. Thus, allowing Ramsden to amend his answer following trial to assert this defense would unfairly prejudice the Ives estate. A trial court should generally deny a motion to amend a pleading if the amendment would prejudice the opposing party. Accordingly, the trial court properly rejected Ramsden's motion to amend his answer. Caruso, 100 Wn.2d at 349. SUITABILITY RULE (1) In recommending to a customer the purchase, sale, or exchange of a security, a broker-dealer, salesperson, investment adviser, or investment adviser representative must have reasonable grounds for believing that the recommendation is suitable for the customer upon the basis of the facts, if any, disclosed by the customer as to his or her other security holdings and as to his or her financial situation and needs. (2) Before the execution of a transaction recommended to a noninstitutional customer, . . . a broker-dealer, salesperson, investment adviser, or investment adviser representative shall make reasonable efforts to obtain information concerning: (a) The customer's financial status; (b) The customer's tax status; (c) The customer's investment objectives; and (d) Such other information used or considered to be reasonable by the broker-dealer, salesperson, investment adviser, or investment adviser representative in making recommendations to the customer. RCW 21.20.702. A. NO PRIVATE RIGHT OF ACTION UNDER RCW 21.20.702 Ά41 The parties did not expressly identify this issue, but we may consider issues not raised below " 'when the question raised affects the right to maintain the action.' " Bennett v. Hardy, 113 Wn.2d 912, 918, 784 P.2d 1258 (1990) (quoting Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 621, 465 P.2d 657 (1970)). This case presents the foundational question of whether the trial court was authorized to impose liability for breach of the suitability rule, and so we address it. Ά42 The Ives estate asserted in its complaint that Ramsden violated the suitability rule, citing RCW 21.20.702. The trial court held that (1) in recommending the Texas Keystone partnership, "Mr. Ramsden breached his duty of due care, duty of fair dealing, and duty to have reasonable grounds to believe his recommendations were suitable for Mr. Ives" (CP at 69); (2) regarding the personal loans, "Mr. Ramsden breached his duty to have reasonable grounds to believe his recommendations were suitable for Mr. Ives" (CP at 70); and (3) the personal loans "constituted the recommendation and sale of unsuitable investments to Mr. Ives." CP at 70. Through these conclusions of law, the trial court indicated that it held Ramsden liable for breaching the suitability rule embodied in RCW 21.20.702. Ά43 The Ives estate argues that RCW 21.20.702 "probably does create a private cause of action." Reply Br. of Resp't at 12. When a statute creates a right but contains no remedy, the statute may contain an implied private right of action, i.e., the right of a private party to sue under the statute. But in determining whether a statute contains an implied private right of action, we must consider whether: (1) the plaintiff is within the class for whose benefit the statute was enacted; (2) legislative intent, explicitly or implicitly, supports creating or denying a remedy; and (3) implying a remedy is consistent with the underlying purpose of the statute. Bennett, 113 Wn.2d at 920-21. Applying those principles here, we hold that RCW 21.20.702 does not create a private right of action because our legislature clearly expressed its intent to disallow civil suits under this provision. Ά44 Before our legislature codified the suitability rule in statute, our courts followed federal law and held that a private party may not sue a broker for violating the NASD suitability rule. Sherry v. Diercks, 29 Wn. App. 433, 441, 628 P.2d 1336, review denied, 96 Wn.2d 1003 (1981); see, e.g., Jablon, 614 F.2d at 678 nn.1 & 2, 681 (holding that there is no private right of action under the NASD suitability rule). Instead, an aggrieved investor must assert another cause of action, such as breach of fiduciary duty or securities fraud. See Sherry, 29 Wn. App. at 441. Ά45 When our legislature codified the suitability rule, which is now embodied in RCW 21.20.702 as part of the Securities Act, it allowed individuals to sue investment brokers who allegedly violated "any provisions of RCW 21.20.010, B. THE TRIAL COURT'S USE OF THE SUITABILITY RULE Ά46 The Ives estate argues that the trial court merely used phrases such as "breach of the suitability rule" as shorthand and that the trial court may properly analyze compliance with the suitability rule as evidence of whether Ramsden breached his common law duty of reasonable care. We agree. Ά49 The trial court found a suitability rule violation for the Texas Keystone investment on the ground that the investment was highly speculative and "caused the last of [Ives's] significant liquid assets to become illiquid." CP at 68. But the trial court also found that the Texas Keystone investment recommendation was: (1) a breach of Ramsden's duty of due care and fair dealing, (2) a CPA violation under RCW 19.86.020, and (3) a Securities Act violation contrary to RCW 21.20.010. Specifically, the trial court found that the Texas Keystone investment violated the Securities Act because Ramsden engaged in fraudulent misrepresentation when he made untrue statements of material fact to Ives about the investment. The trial court awarded $15,958 in damages under the Securities Act and the CPA. Because the trial court was authorized to award the $15,958 for Securities Act fraud and misrepresentation, the trial court's discussion of the suitability rule did not prejudice Ramsden and, therefore, does not require reversal. Ά50 The trial court also found that Ramsden "breached his duty" to follow the suitability rule for the three personal loans. CP at 70. It did not find a legitimate Securities Act violation, such as securities fraud, regarding these loans. But based on Ramsden's "breach" of the suitability rule, the trial court held that Ramsden "violated RCW Chapter Ά51 The trial court held that the 1990 promissory note: (1) unjustly enriched Ramsden by no less than $1,200; (2) violated the Securities Act and, therefore, carried a penalty of $1,200 under RCW 21.20.430; and (3) violated the CPA, RCW 19.86.020. Although the Securities Act remedy was not authorized by law, the trial court had a valid alternative basis to assess the $1,200 penalty for unjust enrichment. Accordingly, no reversible error occurred. Ά52 We note that the trial court found that the 1991 promissory note did not unjustly enrich Ramsden because Ramsden paid a fair interest rate of 12 percent on it and awarded no damages. Ά53 The trial court also found that the 1995 promissory note was voidable due to failure of consideration because Ramsden failed to provide the promised deed of trust to secure the loan and the investment unjustly enriched Ramsden. The trial court ordered Ramsden to repay the note immediately with a fair market value interest rate of 12 percent. The trial court did not award Securities Act remedies. In short, although the trial court used imprecise language when it concluded that the investments violated the Securities Act, we agree with the Ives estate that it did not base its remedies on violations of the suitability rule alone and that no prejudice resulted. C. SUITABILITY OF FIRST FOUR LIMITED PARTNERSHIPS Ά54 In its cross-appeal, the Ives estate argues that the trial court erred when it held that the first four limited partnerships were suitable investments. We review whether the trial court's findings support the conclusion that Ramsden violated his duty of due care and fair dealing by recommending unsuitable investments as defined in RCW 21.20.702. Ά55 Conclusion of law 3 provides: The following limited partnership investments Mr. Ramsden recommended and sold to Mr. Ives were not unsuitable, because Mr. Ives had sufficient liquidity for his circumstances following each of the purchases: $10,000 Phoenix Leasing Cash Distribution Fund III March 31, 1989 $10,000 Southwest Oil & Gas Investment Fund VIII July 20, 1990 $10,000 Windsor Park Properties 6 April 15, 1991 $5,000 Southwest Oil & Gas Investment Fund XB CP at 69. The Ives estate challenges this conclusion on two grounds: (1) the four recommended investments were unsuitable regardless of the amount of Ives's liquid assets remaining after each purchase and (2) the facts do not support a finding that Ives had sufficient liquidity for his circumstances. Ά58 Here, the trial court failed to examine whether the limited partnership investments were appropriate given both Ives's financial status and his investment objectives. Accordingly, the findings are insufficient to support the trial court's conclusion that the investments were not unsuitable and that no breach of duty of due care and fair dealing had occurred. INTEREST AND UNTIMELY ISSUES Ά60 Ramsden also argues that the trial court erred when it awarded damages and postjudgment interest. ATTORNEY FEES A. AT TRIAL Ά64 Under the CPA, Here, the trial court specifically found in its oral ruling that the Ives Estate's trial attorney deducted a small portion of the fees related to the limited partnership investments and that the legal issues involved in all of the investments were the same and, accordingly, failing to prevail on four of them did not impact the time and fees necessary to prevail on the fifth. B. ON APPEAL Ά66 Affirmed in part and remanded for further proceedings regarding the first four partnership sales in accordance with this opinion. HOUGHTON, C.J., and PENOYAR, J., concur.