[No. 53268-5-I. Division One. January 10, 2005.]
KELSEY LANE HOMEOWNERS ASSOCIATION , Appellant , v. KELSEY LANE COMPANY , Respondent .
[1] Vendor and Purchaser - Defect in Property - Duty To Disclose - Fraudulent Concealment - Elements. A purchaser of a residential dwelling seeking damages from the builder-vendor thereof for fraudulent concealment must show (1) a concealed defect in the dwelling; (2) the builder-vendor knew of the defect; (3) the defect is dangerous to the property, health, or life of the purchaser; (4) the defect was unknown to the purchaser and a reasonable inspection by the purchaser would not have disclosed the defect; and (5) the defect substantially reduces the property's value or operates to defeat the purpose of the purchase and sale transaction.
[2] Judgment - Summary Judgment - Burden on Nonmoving Party - Averment of Specific Facts - Speculation. Speculation will not defeat a motion for summary judgment.
[3] Vendor and Purchaser - Defect in Property - Duty To Disclose - Knowledge of Defect - Construction Professional - No Inspection Responsibilities - Limited Exposure to Construction. In an action against a builder-vendor for fraudulent concealment of construction defects, testimony from construction industry experts that any experienced construction professional on the work site would have clearly and obviously recognized the defects is insufficient to show that a construction professional on the work site had actual knowledge of the defects where the professional was not responsible for inspecting or approving any of the construction, had little opportunity to observe the defects, and testified that he or she never observed the defects.
[4] Principal and Agent - Imputation of Agent's Knowledge - Test. An agent's knowledge of information is imputed to the principal only if the information is relevant to the agency relationship.[5] Principal and Agent - Relationship - Determination - Test. An agency relationship does not exist between parties unless the one
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alleged to be the agent has acted under the direction and control of the other party.
[6] Principal and Agent - Independent Contractor - Agent - Distinction - In General. An independent contractor generally is not considered to be an agent of the contractee, given that the contractor acts in his or her own right and is not subject to another's control.
[7] Principal and Agent - Relationship - Determination - Agreement Between Parties. To determine whether an agency relationship exists, a court must look at the spirit of the agreement between the parties.
[8] Principal and Agent - Relationship - Determination - Burden of Proof - Independent Contractor. While the burden of establishing an agency relationship typically rests on the party asserting its existence, a party asserting its status as an independent contractor, rather than an agent, has the burden of establishing the parties' true relationship.
[9] Principal and Agent - Relationship - Determination - Question of Law or Fact. The existence of an agency relationship is a question of fact reserved for a jury unless the facts are undisputed or permit only one conclusion.
[10] Principal and Agent - Independent Contractor - Agent - Distinction - Right of Control. Whether a person is a party's agent or an independent contractor depends on whether the party has the right to control the method or manner in which the person's work is to be done. If the person represents the will of the party only as to the result of the work and not as to the means by which it is to be accomplished, then the person is an independent contractor, not an agent.
[11] Condominiums - Condominium Act - Public Offering Statement - Disclosures - Necessity - In General. The Condominium Act (chapter 64.34 RCW) requires condominium declarants to submit public offering statements for the protection of condominium purchasers that contain certain information enumerated in the statute. A declarant may be liable for any misrepresentations in or any omissions of material fact from the public offering statement if the declarant had actual knowledge or should have known of them in the exercise of reasonable care.
[12] Statutes - Construction - Question of Law or Fact - Review - Standard of Review. The interpretation of a statute and its implementing regulations is a question of law that is reviewed de novo by an appellate court.
[13] Statutes - Construction - Legislative Intent - In General. A court's goal in interpreting a statute is to effectuate the legislature's intent and purpose as expressed in the statute.
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[14] Statutes - Construction - Legislative Intent - Considered as a Whole. In ascertaining the legislative intent underlying a statute, a court looks to the statutory scheme as a whole.
[15] Statutes - Construction - Ambiguity - In General. In interpreting a statute, a court first determines whether the language of the statute is ambiguous, i.e., whether it is capable of more than one reasonable interpretation. If the statute is plain and unambiguous, its meaning is determined from the language of the statute itself. If the statute is ambiguous or unclear, the court may look to legislative history to discern intent.
[16] Statutes - Construction - Meaningful Interpretation. A statute is interpreted to avoid absurd or strained consequences.
[17] Condominiums - Condominium Act - Public Offering Statement - Disclosures - Construction Defects. RCW 64.34.410 (1)(n), RCW 64.34.410 (1)(o), and RCW 64.34.410 (2) of the Condominium Act (chapter 64.34 RCW) do not require a condominium declarant to disclose construction defects in its public offering statement.
[18] Condominiums - Defects - Protection - Warranties. The Condominium Act (chapter 64.34 RCW) protects consumers from construction defects through its express and implied warranty provisions.
[19] Statutes - Construction - Superfluous Provisions. A statute is construed so that no portion of it is rendered meaningless or superfluous.
[20] Fiduciaries - Fiduciary Duty - Disclosure of Material Facts - Knowledge - Necessity. A fiduciary's duty to disclose material facts extends only to those facts that the fiduciary knows or should know. A fiduciary does not have a duty to disclose a fact about which it could not have known.
Nature of Action: A condominium homeowners association sought damages from the condominium project's declarant under theories of fraudulent concealment, misrepresentations and omissions in the public offering statement, breach of fiduciary duty, and violation of the Consumer Protection Act for construction defects that caused severe water damage to the condominium buildings.
Superior Court: The Superior Court for King County, No. 02-2-22933-6, Mary Yu, J., on September 3, 2003 and October 8, 2003, entered a summary judgment in favor of the declarant.
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Court of Appeals: Holding that there was no evidence that the declarant had actual knowledge of the construction defects, that the declarant was not required to include construction defects in its public offering statement, and that there was no evidence that the declarant breached its fiduciary duty while it controlled the homeowners association, the court affirms the judgment.
Richard H. Levin and John C. Siegel (of Levin & Stein ) and Jerry H. Stein , for appellant .
Jerret E. Sale , Deborah L. Carstens , and Gregory A.V. Clark (of Bullivant Houser Bailey, P.C. ), for respondent .
Andrew C. Cook on behalf of Building Industry Association of Washington, amicus curiae .
¶1 AGID , J . - A condominium homeowners association appeals a trial court's order dismissing its case on summary judgment. The association sued the condominium project's declarant after construction defects caused severe water damage to the condominium buildings. The association now argues the trial court erred by finding no genuine issue of material fact about the declarant's actual knowledge of the defects and by dismissing the case without considering claims that relied on a "should have known" standard. But no evidence suggests that the declarant had actual knowledge of the defects. And because a declarant need not include construction defects in its public offering statement and there is no evidence that the declarant breached its fiduciary duty while it controlled the homeowners association, the declarant may not be held liable under a "should have known" standard. We affirm.
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FACTS
¶2 The Kelsey Lane condominium complex is located in Bellevue and consists of 40 units in nine buildings. In 1993, the condominium project's declarant, Kelsey Lane Company, Inc. (KLC), contracted with Sacotte Construction, Inc., to build the complex. KLC also hired Danali Management Corporation (DMC) as the independent project manager. DMC assigned its employee Allen Bayne to the project. By late 1994, construction was complete, and the city of Bellevue had issued final certificates of occupancy for all nine buildings.
¶3 In May 2002, during a routine inspection of the buildings' vinyl siding, inspectors found rot under the building envelope systems. Later that year, engineering investigators removed the siding in 20 locations and discovered that the required building paper was either missing or installed incorrectly in 75 percent of the exposed areas. They also discovered that flashing was missing or improperly installed in many locations. Because vinyl siding is not waterproof, building paper and flashing are installed to create a weather-resistant barrier between the siding and the wall sheathing and wood framing. When the building paper and flashing are missing or improperly installed, water penetrates the sheathing and framing and causes decay. According to the investigators, the water intrusion at Kelsey Lane was so bad that some walls were heavily decayed and in a state of imminent collapse. There was also a likely danger of mold contamination.
¶4 In July 2002, the Kelsey Lane Homeowners Association (Association) sued KLC for fraudulent concealment, misrepresentations and omissions in the public offering statement, breach of fiduciary duty, and violation of the Consumer Protection Act, chapter 19.86 RCW. In August 2003, the trial court dismissed all claims on summary judgment and denied the Association's motion for reconsideration. The Association appeals.
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DISCUSSION
¶5 In reviewing a trial court's decision to grant summary judgment, we review questions of law de novo.«1»We consider all facts and reasonable inferences in the light most favorable to the nonmoving party.«2»Absent a genuine issue of any material fact, the moving party is entitled to summary judgment as a matter of law.«3»Summary judgment is proper "only if reasonable persons could reach only one conclusion from all of the evidence."«4»
I. Fraudulent Concealment
[1]¶6 The Association contends that KLC fraudulently concealed from prospective purchasers the fact that building envelope components were missing or improperly installed. To prove a fraudulent concealment claim, the Association must show: (1) there was a concealed defect in the residential building; (2) the builder knew of the defect; (3) the defect is dangerous to the purchaser's property, health, or life; (4) the purchaser was unaware of the defect and a reasonable inspection would not have disclosed the defect; and (5) the defect substantially reduces the property's value or defeats the transaction's purpose.«5»Here, KLC disputes the second factor, arguing that the Association failed to present evidence that KLC knew of the construction defects.
¶7 The Association responds that while KLC may not have known of the defects, Bayne (the independent project
«1» Mains Farm Homeowners Ass'n v. Worthington , 121 Wn.2d 810 , 813, 854 P.2d 1072 (1993).
«2» Mason v. Kenyon Zero Storage , 71 Wn. App. 5 , 8-9, 856 P.2d 410 (1993).
«3» Condor Enters., Inc. v. Boise Cascade Corp. , 71 Wn. App. 48 , 54, 856 P.2d 713 (1993) (citing CR 56(c); Marincovich v. Tarabochia , 114 Wn.2d 271 , 274, 787 P.2d 562 (1990)).
«4» Hansen v. Friend , 118 Wn.2d 476 , 485, 824 P.2d 483 (1992) (citing Wilson v. Steinbach , 98 Wn.2d 434 , 437, 656 P.2d 1030 (1982)).
«5» Norris v. Church & Co. , 115 Wn. App. 511 , 514, 63 P.3d 153 (2002) (citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co. , 115 Wn.2d 506 , 524, 799 P.2d 250 (1990)).
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manager) and Sacotte (the general contractor) did, and their knowledge is imputed to KLC. To support this claim, the Association argues that the defects were exposed for a long time during the construction process, so Bayne and Sacotte had ample opportunity to notice them, the defects were numerous and obvious, and a professional with Bayne's experience "would undoubtedly have noticed" the defects. A construction expert, an architecture expert, and an engineering expert averred that any experienced construction professional on the condominium construction site would have clearly and obviously recognized the defects. But Bayne responded that he never observed the construction defects. And while Bayne was responsible for monitoring the budget and progress toward completion of the project, he was not charged with inspecting or approving any of the construction. In addition, he stated that he had little opportunity to observe the defects because he was on the site fewer than two hours per week. He also testified that the siding was installed as each building was completed, as quickly as possible once the building paper and flashing were installed. This decreased the likelihood that he would happen to be on the site when it was possible to notice the defects.«6»
¶8 Relying on Atherton Condominium Apartment-Owners Ass'n Board of Directors v. Blume Development Co. «7»and Norris v. Church & Co. ,«8»the Association argues it has presented enough evidence to create a question of fact about whether Sacotte and Bayne knew of the defects. In Atherton , the Blume Development Company was the owner, developer, construction contractor, and vendor of a condominium complex. Three years after the condominiums' completion, portions of the exterior walls began to crack and fall off. The homeowners learned that instead of apply
«6»The evidence the Association presented relates primarily only to Bayne. The Association presented no evidence demonstrating that Sacotte knew of any of the construction defects.
«7»115 Wn.2d 506 , 799 P.2d 250 (1990).
«8»115 Wn. App. 511 , 63 P.3d 153 (2002).
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ing stucco to the exterior walls, Blume had used a stucco substitute that was not authorized by the plans and did not satisfy fire resistivity standards. The homeowners sued Blume, arguing that Blume's failure to disclose its departure from the plans and guidelines constituted fraudulent concealment. The Supreme Court held that the claim survived summary judgment because the evidence supported a reasonable inference that Blume knew it deviated from the approved plans by using the unapproved stucco substitute.«9»
¶9 In Norris , the homeowners purchased a newly-constructed home that Church built. When the windows and doors began to leak, Church advised the homeowners to clean their roof gutters and replace roofing tiles. But the areas continued to leak, causing extensive water damage throughout the home. The homeowners sued Church for fraudulent concealment. We held the case survived summary judgment because the homeowners produced sufficient evidence that Church actually knew of the defects. Specifically, Church testified that it was aware that subcontractors installed windows without leak-preventing material, that the siding was improperly in contact with the ground, and that the problems were readily apparent. In addition, the subcontracts did not call for material to properly seal the windows.«10»
¶10 We noted that because Church testified the problems were readily apparent, "the trier of fact could infer that [Church] must have known of the defects at the time of the construction."«11»The Association relies on this, arguing that because experts stated that the defects would have been readily apparent, a trier of fact could conclude that KLC, Bayne, or Sacotte knew of them. But in Norris , the defendant builder itself testified that the defects were apparent. Here, neither KLC, Bayne, nor Sacotte testified that the defects were apparent. Instead, an uninvolved
«9» Atherton , 115 Wn.2d at 525 .
«10» Norris , 115 Wn. App. at 515 -16.
«11» Id . at 516.
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party stated that the defects would have been apparent. This is an important distinction.
[2, 3]¶11 Unlike the evidence presented in Atherton and Norris , the Association's evidence only creates an issue of fact about whether Bayne and Sacotte should have known about the construction defects. Bayne stated that he was unaware of the defects, and Bayne's job duties did not include performing quality control. Moreover, the record contains no information relating to Sacotte. Viewing the evidence in the light most favorable to the Association, no evidence supports the claim that Bayne and Sacotte in fact knew of the defects. And speculation is insufficient to defeat summary judgment.«12»
[4-9]¶12 But even if the Association's evidence created an issue of fact regarding Bayne's and Sacotte's actual knowledge, the Association's claim nevertheless fails because KLC did not actually know about the defects. The Association claims that because both Bayne and Sacotte were KLC's agents, their knowledge of the construction defects is imputed to KLC and thus the fraudulent concealment claim against KLC may go forward. Generally, an agent's knowledge is imputed to the principal if that knowledge is relevant to the agency relationship.«13»An agency relationship exists, expressly or impliedly, when one party acts under the direction and control of another.«14»An independent contractor is generally not considered an agent because the contractor acts in his own right and is not subject to another's control.«15»To determine whether an agency relationship exists, a court must look at the spirit of
«12» Sanders v. Woods , 121 Wn. App. 593 , 600, 89 P.3d 312 (2004) (citing Suarez v. Newquist , 70 Wn. App. 827 , 832, 855 P.2d 1200 (1993)).
«13» Goodman v. Boeing Co. , 75 Wn. App. 60 , 85, 877 P.2d 703 (1994) (citing RESTATEMENT (SECOND) OF AGENCY § 268, comment c (1958)), aff'd , 127 Wn.2d 401 (1995).
«14» Hewson Constr., Inc. v. Reintree Corp. , 101 Wn.2d 819 , 823, 685 P.2d 1062 (1984) (citing Matsumura v. Eilert , 74 Wn.2d 362 , 444 P.2d 806 (1968)).
«15» Turnbull v. Shelton , 47 Wn.2d 70 , 73, 286 P.2d 676 (1955) (citing 2 AM. JUR . Agency 17 § 8), overruled on other grounds by Crown Controls, Inc. v. Smiley , 110 Wn.2d 695 , 756 P.2d 717 (1988); Norwegian Danish Methodist Episcopal Church of Spokane Falls v. Home Tel. Co. , 66 Wash. 511 , 514, 119 P. 834 (1912) (citing City of Detroit v. Corey , 9 Mich. 165 (1861)).
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the agreement between the parties.«16»While the burden of establishing an agency relationship typically rests upon the party asserting its existence,«17»a party asserting its status as an independent contractor rather than an agent has the burden to show the parties' true relationship.«18»Agency is generally a question of fact reserved for a jury unless the facts are undisputed or permit only one conclusion.«19»
[10]¶13 KLC argues that Sacotte and Bayne were not its agents because they were independent contractors. The contract between KLC and Sacotte states:
The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless Contract Documents give other specific instructions concerning these matters .«20»
The only exceptions to the contractor's total control over the project are: the contractor must obtain the owner's consent before awarding a subcontract for an amount that exceeds the budget; the owner may direct the date of commencement and substantial completion; the owner may direct a change in the work; and the owner may terminate the contractor for cause. The relevant distinction between an
«16» Patent Scaffolding Co. v. Roosevelt Apartments, Inc ., 171 Wash. 507 , 511, 18 P.2d 857 (1933) (citing Foster v. City of Chicago , 197 Ill. 264, 64 N.E. 322 (1902)), overruled on other grounds by Crown Controls , 110 Wn.2d 695 .
«17» Hewson Constr. , 101 Wn.2d at 823 (citing Moss v. Vadman , 77 Wn.2d 396 , 403, 463 P.2d 159 (1969)).
«18» Patent Scaffolding , 171 Wash. at 510 (citing Dishman v. Whitney , 121 Wash. 157 , 162, 209 P. 12 (1922), modified , 124 Wash. 697 , 215 P. 71 (1923)).
«19» Uni-Com N.W., Ltd. v. Argus Publ'g Co. , 47 Wn. App. 787 , 796, 737 P.2d 304 (citing Bloedel Timberlands Dev., Inc. v. Timber Indus., Inc. , 28 Wn. App. 669 , 674-75, 626 P.2d 30, review denied , 95 Wn.2d 1027 (1981)), review denied , 108 Wn.2d 1032 (1987).
«20»(Emphasis added.)
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agent and an independent contractor is whether the owner has
the right to control the method or manner in which the work was to be done[.] . . . if the construction company represented the will of the owner only as to the result of the work, and not as to the means by which it was to be accomplished, then the relation between the parties would be that of independent contractor.«21»
Here, while KLC retained the right to control some budget-related matters, the means by which the project was to be completed remained in Sacotte's control. We conclude that Sacotte was not KLC's agent and any knowledge of construction defects it may have had cannot be imputed to KLC.
¶14 Similarly, Bayne was an independent contractor who was not subject to KLC's control, and thus he was not its agent. KLC hired Bayne's employer, DMC, to act as an independent project manager for the project. Bayne was assigned to it, and his duties were to analyze bids, select a general contractor, negotiate contract terms, and participate in site meetings. He also continuously monitored the "budget, schedules, production achievement, changes of scope, claims for extras, and liaison with outside agencies." Bayne reviewed the contractor's progress claims and evaluated "work-in-place in relation to claimed progress." In his declaration, Bayne stated that KLC did not direct DMC in the methods or means of accomplishing its assignment, nor did it attempt to control the details of DMC's work.
¶15 As stated above, the Association has the burden of proving Bayne's status as an agent, but KLC has the burden of proving Bayne's status as an independent contractor.«22»KLC submitted Bayne's declaration in which
«21» Patent Scaffolding , 171 Wash. at 510.
«22» Hewson Constr. , 101 Wn.2d at 823 (citing Moss , 77 Wn.2d at 403 ) (the burden of establishing an agency relationship typically rests upon the party asserting its existence); Patent Scaffolding , 171 Wash. at 510 (citing Dishman , 121 Wash. at 162) (a party asserting its status as an independent contractor rather than an agent has the burden to show the parties' true relationship).
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Bayne stated that he was not under KLC's control or direction, and the Association submitted nothing to contradict this. The Association argues that Bayne's duties were virtually identical to those of Tom Sager, the owner's representative in Turnbull v. Shelton .«23»But in that case "[t]he record support[ed] the inference that the [owner] consented that Sager should act for him, in his behalf and subject to his control . . . ."«24»The Association provides no evidence of a similar agreement in this case, and Bayne's evidence is all to the contrary. Bayne was not KLC's agent, and thus any knowledge that Bayne may have had cannot be imputed to KLC.«25»
¶16 For these reasons, we hold that the trial court did not err by dismissing the Association's fraudulent concealment claim on summary judgment.
II. Public Offering Statement
[11]¶17 The Washington Condominium Act (WCA), chapter 64.34 RCW, protects condominium purchasers in part by requiring condominium declarants to submit public offering statements (POS)«26»that contain certain information enumerated in the statute.«27»A declarant is liable for any misrepresentations in or any omissions of material fact
«23»47 Wn.2d 70 , 286 P.2d 676 (1955), overruled on other grounds by Crown Controls, Inc. v. Smiley , 110 Wn.2d 695 , 756 P.2d 717 (1988).
«24» Id . at 72 (emphasis added).
«25»The Association argues that, at the very least, the issue of whether Sacotte and Bayne were KLC's agents is a question of fact reserved for a jury. But the facts in this context are not disputed, and the construction contracts and Bayne's declaration are straightforward. Thus, determining whether there was an agency relationship in this context is more an issue of law than fact. See Uni-Com N.W. , 47 Wn. App. at 796 (citing Bloedel Timberlands , 28 Wn. App. at 674 -75) ("The existence of a principal-agent relationship is a question of fact unless the facts are undisputed.").
«26»RCW 64.34.405 (1).
«27»RCW 64.34.410 . For example, a POS must contain the condominium's name and address, the declarant's name and address, the management company's name and address, and the relationship between the declarant and the management company. RCW 4.34.410 (1)(a)-(d).
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from the POS if it had actual knowledge or should have known of them in the exercise of reasonable care.«28»
¶18 In this case, the Association argues that KLC made misrepresentations in and omitted material facts from the POS by failing to disclose the construction defects. And because a declarant will be liable for misrepresentations or omissions about which it reasonably should have known , the Association argues that the trial court erred by dismissing the case on the ground that there was no evidence that KLC had actual knowledge of the construction defects.
¶19 Although the WCA does not require a declarant to disclose construction defects in the POS, the Association claims that certain statutory provisions impliedly require it. KLC disputes the Association's interpretation of the POS provisions and argues that the court need not adopt the Association's interpretation because the WCA already protects consumers from construction defects through its warranty provisions. We agree.
[12-15]¶20 The interpretation of a statute and its implementing regulations is a question of law that we review de novo.«29»Our goal is to effectuate the Legislature's intent and purpose as it is expressed in the act.«30»In ascertaining legislative intent, we must look to the statutory scheme as a whole.«31»When interpreting a statute, we must first determine whether its language is ambiguous; that is, whether it is capable of more than one reasonable
«28»RCW 64.34.405 (3).
«29» In re Impoundment of Chevrolet Truck , 148 Wn.2d 145 , 154, 60 P.3d 53 (2002) (citing Franklin County Sheriff's Office v. Sellers , 97 Wn.2d 317 , 325, 646 P.2d 113 (1982), cert. denied , 459 U.S. 1106 (1983)).
«30» State v. Grays Harbor County , 98 Wn.2d 606 , 607, 656 P.2d 1084 (1983) (citing In re Pers. Restraint of Lehman , 93 Wn.2d 25 , 27, 604 P.2d 948 (1980)).
«31» Auto. Drivers & Demonstrators Union Local No. 882 v. Dep't of Ret. Sys ., 92 Wn.2d 415 , 420, 598 P.2d 379 (1979) (citing Hartman v. Wash. State Game Comm'n , 85 Wn.2d 176 , 532 P.2d 614 (1975)), appeal dismissed , cert. denied , 444 U.S. 1040 (1980).
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interpretation.«32»If the language is plain and unambiguous, we determine the statute's meaning from the statute itself.«33»But if it is ambiguous or unclear, we may look to legislative history to discern intent.«34»
[16, 17]¶21 The Association cites three WCA provisions to support its claim that a declarant must disclose construction defects in its POS. The first provision, RCW 64.34.410 (1)(n), requires a POS to state "[t]he status of construction of the units and common elements, including estimated dates of completion if not completed . . . ." This is not ambiguous, as it simply requires the POS to state the extent to which the project's construction is completed. The Association nevertheless argues that because the dictionary defines "status" as a condition, the statute requires information about the project's condition, including any construction defects. But the second clause of the provision, "including estimated dates of completion if not completed," indicates that the legislature is referring to the construction's completion status, not to construction defects. The interpretation urged by the Association is awkward at best, and we must interpret statutes in a way so as to avoid any "absurd or strained consequences."«35»
¶22 The next provision cited by the Association, RCW 64.34.410 (1)(o), requires that the POS include the estimated current common expense liability for offered units. "Common expense liability" is liability for common expenses allocated to each condominium unit,«36»and "common
«32» Edelman v. State ex. rel. Pub. Disclosure Comm'n , 116 Wn. App. 876 , 882-83, 68 P.3d 296 (2003) (citing Vashon Island Comm. for Self-Gov't v. Wash. State Boundary Review Bd. for King County , 127 Wn.2d 759 , 771, 903 P.2d 953 (1995)), aff'd , 152 Wn.2d 584 , 99 P.3d 386 (2004).
«33» Grays Harbor County , 98 Wn.2d at 607 (citing Lehman , 93 Wn.2d at 27 ; Garrison v. Wash. State Nursing Bd. , 87 Wn.2d 195 , 196, 550 P.2d 7 (1976)).
«34» Id . at 607-08 (citing Whitehead v. Dep't of Soc. & Health Servs. , 92 Wn.2d 265 , 268, 595 P.2d 926 (1979); Ropo, Inc. v. City of Seattle , 67 Wn.2d 574 , 577, 409 P.2d 148 (1965); Garrison , 87 Wn.2d at 196 ).
«35» State v. Stannard , 109 Wn.2d 29 , 36, 742 P.2d 1244 (1987) (citing State v. Richardson , 81 Wn.2d 111 , 499 P.2d 1264 (1972)).
«36»RCW 64.34.020 (8).
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expenses" are the association's expenditures or financial liabilities.«37»The requirement that a POS contain an estimated and current statement of common expenses is unambiguous, and is intended to give potential purchasers an accurate idea of what their homeowners association dues may be.«38»The Association nevertheless argues that a requirement to disclose all common expenses necessarily requires that the costs to repair construction defects be included. But the relationship between the estimated current common expense liability requirement and the duty to disclose construction defects is too tenuous to be a reasonable reading of the provision, particularly in view of the WCA's provisions providing warranties for construction defects.
¶23 Finally, RCW 64.34.410 (2) requires the declarant to attach the association's current or proposed budget to the POS. The Association argues that KLC violated this provision by submitting a budget that misrepresented the dollar amounts necessary for repairing the defects and associated legal services. But for the same reason discussed in the context of the common expense liability provision, this is a strained interpretation that we reject.
[18, 19]¶24 The Association points out that the WCA is a consumer protection statute that imposes on all declarants the duty to act in good faith, and thus it would be sound public policy to require a declarant to include construction defects in its POS. But the WCA already protects consumers from construction defects through its express and implied warranty provisions.«39»And we may not interpret a statute in a way that renders another statutory
«37»RCW 64.34.020 (7).
«38» See Uniform Condominium Act (UCA) § 4-103, comment 4. We may look to the UCA's official comments in determining the legislature's intent because the WCA substantially conforms to the UCA. Marina Cove Condo. Owners Ass'n v. Isabella Estates , 109 Wn. App. 230 , 241, 34 P.3d 870 (2001) (citing RCW 64.34.950 ).
«39» See RCW 64.34.443 , .445.
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portion meaningless or superfluous.«40»We hold that the POS provisions of the WCA do not require the disclosure of construction defects.
¶25 But even if KLC were liable for not disclosing construction defects in the POS, there is insufficient evidence to create an issue of material fact about whether KLC reasonably should have known about the construction defects.«41»As discussed above, while there may be evidence to support the inference that Bayne or Sacotte should have known of the defects, this knowledge may not be imputed to KLC. And although the Association's construction expert testified that the relevant standard of care requires developers to employ an experienced construction manager to regularly inspect construction quality, this standard is irrelevant in determining whether the owner violated the specific provisions of the WCA on which the Association relies.
III. Breach of Fiduciary Duty
[20]¶26 A condominium's homeowners association is managed by a board of directors«42»which must always act on the association's behalf.«43»When the officers and members of the board are appointed by the condominium declarant (as opposed to being elected by unit owners), they have the duty to act with the care required of fiduciaries of the unit owners.«44»A fiduciary duty includes the duty to disclose
«40» Whatcom County v. City of Bellingham , 128 Wn.2d 537 , 546, 909 P.2d 1303 (1996) (citing Stone v. Chelan County Sheriff's Dep't , 110 Wn.2d 806 , 810, 756 P.2d 736 (1988); Tommy P. v. Bd. of County Comm'rs , 97 Wn.2d 385 , 391, 645 P.2d 697 (1982)).
«41» See RCW 64.34.405 (3) (a declarant may be liable for misrepresentations in or omissions from the POS about which it should have known in the exercise of reasonable care).
«42»RCW 64.34.020 (5).
«43»RCW 64.34.308 (1).
«44»RCW 64.34.308 (1)(a).
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material facts.«45»In this case, KLC controlled the homeowners association from its inception in May 1994 until it turned control over to the homeowners in January 1995. During the time it controlled the association, KLC owed a fiduciary duty to the unit owners.
¶27 The Association now argues that KLC, when it managed the homeowners association, had the duty to disclose information that it knew or should have known , and because it should have known of the construction defects, it breached its duty. In addition to the reasons discussed above for concluding KLC neither knew nor should have known of the defects, this argument has a more fundamental problem. The homeowners association was not created until the end of May 1994, and the siding was completed sometime in early April 1994. Therefore, KLC, in its capacity as a member of the homeowners association, could not have known about the defects since the defects were concealed before the association was formed. The Association presents no evidence to the contrary, and we conclude that there is no issue of fact about whether KLC breached its fiduciary duties. The trial court did not err by granting summary judgment.«46»
¶28 We affirm.«47»
ELLINGTON , A.C.J ., and APPELWICK , J ., concur .
«45» Colonial Imps., Inc. v. Carlton N.W., Inc. , 121 Wn.2d 726 , 732, 853 P.2d 913 (1993).
«46»The Association also assigned error to the dismissal of its Consumer Protection Act claim. But the Association did not state the basis for this assignment of error, nor did it cite any legal authority. We thus consider this assignment of error waived. See Smith v. King , 106 Wn.2d 443 , 451-52, 722 P.2d 796 (1986) (a party waives an assignment of error if it presents no authority or argument to support it).
«47»Because we affirm the trial court's summary judgment dismissal, we need not discuss KLC's statute of limitations or economic loss arguments.
No. 52609-0-I. Division One. November 22, 2004.]
THE STATE OF WASHINGTON , Respondent , v. GEORGE WARD , Appellant . [1] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Presumption - In General. A court reviewing a claim of ineffective assistance of trial counsel begins with the strong
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presumption that counsel's conduct fell within the wide range of reasonable professional assistance.
[2] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Test. Ineffective assistance of counsel in a criminal case is deficient representation that is prejudicial to the defense. Deficient representation is representation that falls below an objective standard of reasonableness. Prejudice is shown by a reasonable probability that the outcome of the proceedings would have been different had counsel's performance not been deficient.
[3] Criminal Law - Lesser Included Offense - Instruction - Necessity - Test. A criminal defendant is entitled to an instruction on a lesser included offense if (1) each element of the lesser offense is an element of the offense charged and (2) the evidence supports an inference that only the lesser crime was committed.
[4] Assault, Criminal - Second Degree Assault - Included Offenses - Display of Firearm. Unlawful display of a firearm under RCW 9.41.270 is a lesser included offense of second degree assault with a deadly weapon under RCW 9A.36.021 .
[5] Criminal Law - Lesser Included Offense - Instruction - Necessity - Evidence in Support - Consideration of Evidence. When determining whether there is sufficient evidence in the record of a criminal proceeding to support an inference that a lesser included offense was committed, a court views the evidence in the light most favorable to the party requesting the instruction.
[6] Assault, Criminal - Second Degree Assault - Elements - Intent - Apprehension and Fear of Bodily Harm - Reasonable Apprehension of Harm. Second degree assault under RCW 9A.36.021 requires proof of specific intent to create reasonable fear and apprehension of bodily injury.
[7] Assault, Criminal - Second Degree Assault - Elements - Intent - Apprehension and Fear of Bodily Harm - Display of Firearm. For purposes of second degree assault under RCW 9A.36.021 , the mere display of a firearm does not constitute specific intent to create reasonable fear and apprehension of bodily injury.
[8] Weapons - Firearms - Unlawful Display - Elements - In General. Evidence that a criminal defendant displayed a firearm in a manner manifesting an intent to intimidate another or warranting alarm for another's safety will support a conviction of unlawful display of a firearm under RCW 9.41.270 (1).
[9] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Failure To Request Instruction - Lesser Included Offense. Defense counsel's failure to request a lesser included offense instruction constitutes ineffective assistance of counsel if the record supports giving the instruction and there is no legitimate strategic or tactical reason for not making the request.
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[10] Criminal Law - Weapon - Enhanced Punishment - Firearm - Double Jeopardy - Multiple Crimes. A criminal defendant is not placed in double jeopardy by the imposition of separate firearm sentence enhancements under former RCW 9.9A.510 (3) (2000) upon conviction of multiple offenses arising from the same criminal episode while armed with the same firearm.
[11] Criminal Law - Weapon - Enhanced Punishment - Firearm - Multiple Enhancements - Consecutive or Concurrent - In General. Under former RCW 9.94A.510 (3) (2000), when a defendant is convicted of two or more eligible offenses while armed with the same firearm, a sentence enhancement must be imposed for each conviction, to be served consecutively.
[12] Searches and Seizures - Prisons - DNA - Collection of Biological Sample - Warrantless Search - Validity. The State does not undertake an unreasonable search or seizure by extracting a biological sample from a convicted felon without a warrant pursuant to RCW 43.43.754 for the purpose of DNA identification analysis.
Nature of Action: Prosecution for two counts of second degree assault while armed with a firearm and one count of unlawful possession of a controlled substance.
Superior Court: The Superior Court for King County, No. 02-1-02840-0, Ronald Kessler, J., on June 30, 2003, entered a judgment on a verdict finding the defendant guilty of the charges.
Court of Appeals: Holding that the defendant's trial counsel was ineffective for failing to request an instruction on the lesser included offense of unlawful display of a weapon, the court reverses the judgment and remands the case for further proceedings.
Cheryl D. Aza and Corey M. Endo (of Washington Appellate Project ), for appellant .
Norm Maleng , Prosecuting Attorney, and Erin H. Becker , Deputy, for respondent .
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¶1 PER CURIAM - George Ward was convicted of two counts of assault in the second degree. We agree with Ward that his counsel were ineffective in failing to request an instruction on the lesser included offense of unlawful display of a weapon. We reverse and remand for retrial.
FACTS
¶2 On the night of November 18, 2001, Thomas Tuttle, the owner of a towing and repossession company, went to George Ward's home to repossess a Buick Riviera. Tuttle was accompanied by his son-in-law, Jay Baldwin. Sometime between 8:00 and 9:00 P.M ., Tuttle backed his unmarked tow truck into Ward's driveway behind Ward's Buick and began to attach the towing mechanism. Baldwin got out of the truck to check that the mechanism was attaching properly.
¶3 As the car was being lifted, Ward appeared on the porch of his home. According to Baldwin and Tuttle, Ward pointed a gun, first at Baldwin, then at Tuttle through the rear window of the truck, and shouted at them to get away from the car and leave. Tuttle released the car, Baldwin got into the truck, and they drove a short distance away and called police. Kim Wilson, Ward's girl friend, then drove off in the Buick.
¶4 When police officers arrived, Ward cooperated, acknowledged that he had a gun, and said he had a carry permit. Officer Massey found a loaded Smith & Wesson pistol in Ward's jacket pocket. The gun was similar in appearance to that described by Baldwin and Tuttle.
¶5 Ward was arrested. After being advised of his Miranda «1»rights, Ward told the arresting officer that two men had come to repossess his car and he had chased them off. He said he had just missed a car payment and would get it sorted out with the bank, but he was not going to let them repossess the car. In a search incident to the arrest, Officer Massey found a baggie of methamphetamine in Ward's pants pocket.
«1» Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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¶6 Ward was charged with two counts of assault in the second degree and one count of possession of methamphetamine. The jury found him guilty as charged, and found that Ward was armed with a firearm during the assaults. The trial court sentenced Ward to five months on each assault (an exceptional sentence below the standard range) and five months on the possession charge, to run concurrently. Consecutive 36-month firearm enhancements brought Ward's sentence to 77 months. The court also ordered Ward to provide a biological sample of DNA pursuant to RCW 43.43.754 . Ward appeals his assault conviction on grounds of ineffective assistance of counsel and also appeals his sentence.
DISCUSSION
[1, 2]¶7 Ineffective Assistance of Counsel . When a defendant claims he has been deprived of the Sixth Amendment right to effective assistance of counsel, we begin with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. In re Pers. Restraint of Pirtle , 136 Wn.2d 467 , 487, 965 P.2d 593 (1998) (citing Strickland v. Washington , 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To establish a claim of ineffective assistance of counsel, Ward must show that his trial attorney's representation was deficient and that the deficiency prejudiced his defense. State v. Thomas , 109 Wn.2d 222 , 225-26, 743 P.2d 816 (1987) (quoting Strickland , 466 U.S. at 687). To meet the first prong of this test, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Thomas , 109 Wn.2d at 226 (citing Strickland , 466 U.S. at 688). To show prejudice, the defendant must show a reasonable probability that the outcome would have been different absent the attorney's deficient performance. Thomas , 109 Wn.2d at 226 (citing Strickland , 466 U.S. at 693).
[3-5]¶8 Ward argues that his attorneys were ineffective for failing to request a jury instruction on the lesser
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included offense of unlawful display of a weapon. A defendant is entitled to an instruction on a lesser included offense if two conditions are met: each of the elements of the lesser offense must be elements of the offense charged (the legal prong), and the evidence must support an inference that only the lesser crime was committed (the factual prong). State v. Workman , 90 Wn.2d 443 , 447-48, 584 P.2d 382 (1978). The State concedes that unlawful display of a firearm is a lesser included offense of second degree assault with a deadly weapon, but contends the record did not support a rational inference that Ward committed only that crime, to the exclusion of assault in the second degree. See State v. Fernandez-Medina , 141 Wn.2d 448 , 455, 6 P.3d 1150 (2000). In this inquiry, we view the evidence in the light most favorable to the party requesting the instruction. Fernandez-Medina , 141 Wn.2d at 455 -56.
[6-8]¶9 To convict a defendant of second degree assault, the jury must find specific intent to create reasonable fear and apprehension of bodily injury. State v. Byrd , 125 Wn.2d 707 , 713, 887 P.2d 396 (1995). Such intent may be inferred from pointing a gun, but not from mere display of a gun. State v. Eastmond , 129 Wn.2d 497 , 500, 919 P.2d 577 (1996). To convict a defendant of unlawful display, the jury must find the defendant displayed a weapon in a manner manifesting an intent to intimidate another or warranting alarm for another's safety. RCW 9.41.270 (1).
¶10 Ward testified that he believed Baldwin and Tuttle were trying to steal his car and that Baldwin came toward him with a crowbar. Both he and Wilson testified that Ward told the men he had a gun, ordered them to leave his property, and then displayed the gun by opening his jacket. Ward and Wilson both testified that Ward did not point his gun. Viewing the evidence in the light most favorable to Ward, a jury could decide that Ward committed only the crime of unlawful display of a weapon. Ward was entitled to an instruction on unlawful display of a weapon because both the legal and factual prongs of the Workman test were satisfied.
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¶11 The State points out that the unlawful display statute does not apply to any act committed in a defendant's place of abode and argues that an instruction on unlawful display was unavailable because Ward was standing on his front porch at the time of the incident. This point was not really litigated, however. Testimony as to Ward's exact location at the time of the display was inconclusive«2»but was sufficient for a rational jury to determine that Ward was no longer on his porch. Ward was entitled to the instruction.
[9]¶12 The State also contends that counsel's failure to request the instruction was legitimate trial strategy, an "all or nothing" choice to force the jury to acquit on the greater charge and prevent conviction (by compromise or otherwise) on the lesser. We have carefully examined the record and must disagree.
¶13 First, the potential jeopardy for Ward was considerable. He faced 89 months in prison for the two assaults, including the mandatory firearm enhancements.«3»Unlawful display of a weapon, by contrast, is a gross misdemeanor carrying a maximum penalty of one year in jail and revocation of a concealed weapons permit. RCW 9.41.270 (2); RCW 9.92.020 . Misdemeanor offenses are not subject to the imposition of firearm enhancements. Former RCW 9.94A.510 (3) (2000).
¶14 Second, Ward's defenses were the same on both the greater and lesser offenses. His theory at trial was lawful defense of self and property. These are complete defenses to both second degree assault and unlawful display of a weapon. RCW 9.41.270 (3)(c). An instruction on the lesser included offense was therefore at little or no cost to Ward. If the jury had believed Ward acted lawfully, he would have been acquitted of both the greater and lesser offenses. If the jury did not believe Ward acted lawfully, but doubted
«2»Both Baldwin and Tuttle testified that they were not sure where Ward was at the time of the incident but believed he had come down the porch steps. Wilson testified Ward was on the porch. Ward's own testimony was unclear.
«3»The standard range on each assault was 13 to 17 months, plus the mandatory 36-month firearm enhancement on each count. Former RCW 9.94A.510 (2000).
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whether he pointed his gun, he would have been convicted only of the misdemeanor.
¶15 Finally, self-defense as an all or nothing approach was very risky in these circumstances, because it relied for its success chiefly on the credibility of the accused. Ward testified he believed Tuttle and Baldwin were there to steal his car and that Baldwin came toward him carrying a raised crowbar. But the arresting officers testified Ward told them he was trying to stop a repossession. This greatly impeached Ward's credibility on the defense of property theory and also called into question his testimony that Baldwin was carrying a crowbar in a menacing fashion, thus undermining his theory of self-defense as well. Ward's credibility was further damaged when his testimony about the methamphetamine directly conflicted with his counsel's opening statement. Given the developments at trial and the starkly different potential penalties, it was objectively unreasonable to rely on such a strategy.
¶16 In these circumstances, we can see no legitimate reason to fail to request a lesser included offense instruction. The all or nothing strategy exposed Ward to a substantial risk that the jury would convict on the only option presented, two second degree assaults.
¶17 As the United States Supreme Court has stated:
[I]t is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction . . . precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.
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Keeble v. United States , 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d. 844 (1973).
¶18 It is also reasonably probable that the outcome would have been different. During its deliberations, the jury asked whether "assault in the second degree [can] occur if a deadly weapon is shown but not pointed at a victim." Clerk's Papers at 42. At sentencing, the trial judge imposed an exceptional sentence below the standard range and commented:
Mr. Ward was indeed provoked in his actions by incredibly foolish acts by these men . . . that but for the acts of the complainants, who appeared in the dark at Mr. Ward's home, without any identification, in an unmarked vehicle, . . . that provoked the act that Mr. Ward exercised.
Report of Proceedings (June 27, 2003) at 23.
¶19 We reverse and remand for a new trial on the assault charges.
¶20 Issues Decided in Anticipation of Remand . Ward also contends that the trial court violated double jeopardy principles when it imposed the two firearm enhancements for the use of a single pistol and that the sentencing condition requiring Ward to provide a DNA sample violated his state and federal constitutional rights. Because these issues may again arise upon retrial, we address them both.
[10]¶21 Firearm Enhancements . Ward was sentenced to two consecutive 36-month firearm enhancements under former RCW 9.94A.510 (3) for the use of a Smith & Wesson pistol during the two assaults. Ward contends the firearm enhancements violate double jeopardy principles because only one pistol was used in the commission of the crimes.
¶22 Washington courts have repeatedly rejected double jeopardy arguments regarding weapon enhancements. State v. Huested , 118 Wn. App. 92 , 95, 74 P.3d 672 (2003) (citing State v. Claborn , 95 Wn.2d 629 , 628 P.2d 467 (1981)). In Claborn , the defendant was armed with a single pistol during commission of burglary and theft; the court imposed two separate firearm enhancements. The Supreme Court
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noted that even though the crimes were close in point of time, the enhancements applied to separate crimes with different elements. Claborn , 95 Wn.2d at 636 -37. Secondly, the court held that double jeopardy was not implicated because the weapon enhancements were not criminal offenses, but "merely limit[ed] the discretion of the trial court . . . in the setting of minimum sentences." Claborn , 95 Wn.2d at 637 . In Huested , the defendant was convicted of committing first degree burglary and first degree rape while armed with a single knife. We held that double jeopardy was not violated by two weapon enhancements because RCW 9.94A.510 (4) "unambiguously shows legislative intent to impose two enhancements based on the single act of possession a weapon, where there are two offenses eligible for an enhancement." Huested , 118 Wn. App. at 95 .
[11]¶23 These cases control. If Ward is again convicted of assaults on two separate victims, each with the use of a firearm, former RCW 9.94A.510 (3)«4»requires multiple enhancements, served consecutively. We therefore reject Ward's arguments.
[12]¶24 DNA Sample . RCW 43.43.754 requires convicted felons to provide DNA samples. Ward contends the statute authorizes a warrantless search without probable cause, in violation of the fourth amendment of the United States Constitution and the Washington Constitution. We reject his arguments for the reasons set forth in State v. Olivas , 122 Wn.2d 73 , 856 P.2d 1076 (1993), and State v. Surge , 122 Wn. App. 448 , 94 P.3d 345 (2004).
¶25 Reversed and remanded for a new trial.
«4»Effective July 1, 2004, the relevant sections of former RCW 9.94A.510 were replaced by RCW 9.94A.533 .