[No. 34589-7-II. Division Two. May 30, 2007.]
[1] Judgment Summary Judgment Burden on Moving Party Shifting Burden to Nonmoving Party. A party moving for summary judgment has the burden of demonstrating the absence of any genuine issue of material fact. If the moving party satisfies its burden, the nonmoving party may avoid summary judgment by averring sufficient facts demonstrating the existence of a genuine issue of material fact for trial. [2] Judgment Summary Judgment Review Standard of Review. An appellate court reviews a summary judgment de novo, applying the standard of CR 56(c) and viewing the facts submitted in the light most favorable to the nonmoving party. [3] Judgment Summary Judgment Determination Single Conclusion From Evidence. A court should grant a summary judgment only if reasonable persons could reach but one conclusion from the facts submitted. [4] Contracts Construction Legal Effect Question of Law or Fact Review. The legal effect of a contract is a question of law that is reviewed de novo if the facts are undisputed. [5] Vendor and Purchaser Earnest Money Agreement Legal Description Necessity. Under the real estate statute of frauds (RCW 64.04.010), every sales contract for real property must contain a legal description of the property by the correct lot number, block number, addition, city, county, and state. This is a strict requirement. [6] Vendor and Purchaser Earnest Money Agreement Legal Description Addition by Agent Sufficiency In General. The requirement of the real estate statute of frauds (RCW 64.04.010) that an agreement for the purchase and sale of real property contain a legal description of the property may be satisfied where the contracting parties appoint an agent to addend or write in the legal description. Once the agent enters the legal description, the legal description requirement of the statute of frauds is satisfied. [7] Insurance Construction of Policy Meaning of Words Undefined Terms Ordinary Meaning. A court will give contract terms that are undefined by the contract their plain, ordinary, and popular meaning. [8] Contracts Construction Conflicts Harmonization. When interpreting a contract, a court will seek to harmonize clauses that seem to conflict. [9] Contracts Construction Meaning to All Provisions. When interpreting a contract, a court will seek to give effect to all of the contract's provisions. [10] Vendor and Purchaser Earnest Money Agreement Legal Description Addition by Agent Stipulation by Parties Effect. When a party signs an agreement for the purchase and sale of real property that contains a stipulation to have a dual agent add the legal description of the property as an addendum to an agreement and a stipulation to sell the property on the terms and conditions in the purchase and sale agreement, the party contracts away its right to revoke the dual agent's authority to attach the legal description. [11] Vendor and Purchaser Earnest Money Agreement Formation Meeting of Minds Point Not Previously Raised. An agreement for the purchase and sale of real property does not fail for a lack of a meeting of the minds over a particular point if the point was never raised before the agreement was signed. [12] Contracts Construction Extrinsic Evidence Test. Absent accident, fraud, or mistake, extrinsic evidence may not be admitted to add to or contradict a written contract. [13] Contracts Construction Intent of Parties Scope of Inquiry. A court interprets the written terms of a contract, not what was intended to be written. [14] Contracts Mistake Misunderstanding Failure To Raise Waiver. In a breach of contract action, the defenses of mistake and misunderstanding are waived if they are not raised at trial. [15] Contracts Formation Mutual Assent Knowledge of Terms Duty To Read In General. Parties have a duty to read the contracts they sign. [16] Contracts Formation Mutual Assent Knowledge of Terms Duty To Read Reliance on Translator or Interpreter Effect. A party to a contract who reasonably relies on a translator or interpreter is not exempt from the rule that parties have a duty to read the contracts they sign. [17] Judgment Summary Judgment Review Disposition Entry of Summary Judgment Record Sufficiency. An appellate court may deny a request to grant a summary judgment in favor of a party if the record does not clearly indicate whether the opposing party has had an opportunity to demonstrate the existence of a disputed issue of material fact to the trial court. [18] Contracts Costs Attorney Fees Contractual Right Question of Law or Fact Review. Whether a party is entitled to attorney fees under a contractual attorney fee clause is an question of law that is reviewed de novo. [19] Contracts Costs Attorney Fees Contractual Right Prevailing Party In General. Attorney fees are not awardable under a contract clause providing for attorney fees to the prevailing party in a dispute concerning the contract if no party has yet prevailed in the particular action. Nature of Action: Action to specifically enforce an agreement for the purchase and sale of real property. The plaintiffs, the purchasers under the agreement, also sought damages for breach of contract. The agreement stipulated that the parties' dual agent would add the legal description of the property as a contract addendum. After entering the agreement, the seller sought but failed to obtain an environmental indemnity clause. It thereupon directed the agent not to add the legal description addendum. The agent added the addendum nonetheless. The seller then refused to close the sale. Superior Court: The Superior Court for Pierce County, No. 05-2-11999-9, Frederick W. Fleming, J., on March 10, 2006, entered a summary judgment in favor of the seller. Court of Appeals: Holding that the seller contracted away the right to unilaterally revoke the dual agent's authority to add the property description, and that the purchase and sale agreement is therefore valid and binding under the statute of frauds, but that the record in insufficient to grant judgment in favor of the purchasers, the court reverses the judgment and remands the case for further proceedings. Thomas H. Oldfield- (of Oldfield & Helsdon, P.L.L.C.), for appellants. Timothy L. Ashcraft- (of Williams Kastner & Gibbs), for respondent. Ά1 QUINN-BRINTNALL, J. U.S. Eagle High, L.L.C., through its sole member, Choo W. Kim, signed a purchase and sale agreement to sell its commercial property to Lloyd and Monica Nishikawa. One real estate agent represented both parties to the transaction. The agreement stipulated that the dual agent would add the property's legal description as a contract addendum. Without a legal description, the agreement is not legally binding. Ά2 After entering the agreement but before the dual agent added the legal description, U.S. Eagle decided that it wanted an environmental indemnity clause that was not contained in the agreement in order to prevent the Nishikawas from suing U.S. Eagle if they discovered environmental contamination on the property. U.S. Eagle instructed the dual agent not to add the legal description to the contract. The agent did so anyway. When U.S. Eagle refused to close the sale without first receiving assurances of indemnification, the Nishikawas sued for specific performance. Ά3 The trial court granted U.S. Eagle's motion for summary judgment and denied the Nishikawas' cross-motion for summary judgment. It reasoned that the purchase and sale agreement was void because U.S. Eagle had revoked the dual agent's authority to attach the legal description, which was essential to validate the contract under the statute of frauds. But we hold that under the purchase and sale agreement, U.S. Eagle contracted away the right to unilaterally revoke the dual agent's authority to add the property description. Accordingly, the purchase and sale agreement is valid and binding under the statute of frauds. Thus, we reverse the grant of summary judgment to U.S. Eagle and the accompanying grant of attorney fees, affirm the denial of summary judgment for the Nishikawas, and remand for further proceedings consistent with this opinion. FACTS Ά4 The facts before the trial court on the motion for summary judgment were, in relevant part, undisputed. Kim owned a commercial property in Tacoma. Ά5 The parties signed a purchase and sale agreement. Relevant here, the agreement contained two clauses that relate to attaching the property's legal description and an integration clause. In the agreement, the "Buyer and Seller authorize[d] the Listing Agent or Selling Licensee to insert and/or correct, over their signatures, the legal description of the Property." Clerk's Papers (CP) at 14. And in an amendment to the boilerplate contract, the parties added that the "Seller [U.S. Eagle] shall provide the legal description." CP at 20. The integration clause read: "The Agreement and any addenda and exhibits to it state the entire understanding of Buyer and Seller regarding the sale of the Property. There are no verbal or written agreements which modify or affect the Agreement." CP at 18. Ά6 U.S. Eagle was unhappy with the deal. It wanted an agreement to indemnify it and Kim for environmental liability, even though the purchase and sale agreement contained no such clause. Kim declares that he always intended to include an indemnification and that he would not have signed the agreement if he had known it did not contain that term. Kim is not fluent in English, the agreement is written in English, and Kim asserts that he relied on the dual agent, Lee, to explain the terms in Korean. Kim alleges that Lee failed to inform him adequately of the terms before he signed the agreement. Ά7 U.S. Eagle's attorney sent a letter to Lee and Windermere's branch manager, Wanda Coats. The agents had not yet attached the property's legal description to the contract. The letter explained that (1) U.S. Eagle wanted environmental indemnity and so did not want the agreement to mature into an enforceable contract, (2) the agreement was unenforceable without the property's legal description, and (3) Lee and Coats would violate their fiduciary duty to U.S. Eagle if it hurt U.S. Eagle's negotiating position. And the letter said, "I understand that the Purchase and Sale Agreement . . . does provide that the listing agent or selling licensee may attach a legal description. Understand, Mr. Kim is instructing Mr. Lee explicitly not to do this." CP at 26. Despite U.S. Eagle's letter, Coats attached the legal description to the purchase and sale agreement. Ά8 U.S. Eagle then proposed an environmental indemnity agreement, but the Nishikawas rejected the proposal. Even though all contingencies were satisfied, U.S. Eagle refused to close the sale. Ά9 The Nishikawas sued U.S. Eagle, alleging breach of contract and seeking damages and specific enforcement of the agreement. The parties filed cross-motions for summary judgment. The trial court granted summary judgment and contractual attorney fees and costs to U.S. Eagle, rejected the Nishikawas' motion for summary judgment, and dismissed the action. Ά10 This appeal requires us to answer three questions: (1) whether the purchase and sale agreement is unenforceable because U.S. Eagle revoked the dual agent's authority to add the property's legal description, (2) whether we should enter summary judgment for the Nishikawas, and (3) whether we should grant the Nishikawas' request for attorney fees. ANALYSIS Agent's Authority Ά14 In cases such as this one, where the facts are undisputed, the legal effect of a contract is a question of law that we review de novo. Yeats v. Estate of Yeats, 90 Wn.2d 201, 204, 580 P.2d 617 (1978). Under the statute of frauds, every sales contract for real property must contain the legal description of the property's correct lot number, block number, addition, city, county, and state. Martin v. Seigel, 35 Wn.2d 223, 229, 212 P.2d 107 (1949). This requirement is strict. Key Design, Inc. v. Moser, 138 Wn.2d 875, 881-84, 983 P.2d 653 (1999). But the contractors need not include the legal description when they sign the contract. They may instead appoint an agent to addend or write in the legal description. Edwards v. Meader, 34 Wn.2d 921, 925, 210 P.2d 1019 (1949). If the agent enters the legal description, then the agreement satisfies this provision of the statute of frauds. McKoin v. Kunes, 5 Wn. App. 731, 734, 490 P.2d 735 (1971). Ά15 When interpreting a contract, we give undefined terms their plain, ordinary, and popular meaning. Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 576, 964 P.2d 1173 (1998). And we harmonize clauses that seem to conflict. Our goal is to interpret the agreement in a manner that gives effect to all the contract's provisions. Mayer v. Pierce County Med. Bureau, Inc., 80 Wn. App. 416, 423, 909 P.2d 1323 (1995). Ά16 In short, the question before us is whether the legal description in the document entitled "Exhibit A" is part of the agreement. If the answer is yes, the statute of frauds is satisfied and summary judgment for U.S. Eagle is improper on this ground. Ά17 U.S. Eagle "agree[d] to sell the Property on the terms and conditions" contained within the purchase and sale agreement. CP at 19. Those terms included that U.S. Eagle would provide the property's legal description and that Lee and Coats had authority to insert the legal description. U.S. Eagle sought to revoke the agents' authority to attach the description. Ά18 By the terms outlined above, U.S. Eagle contracted that it would not revoke Lee and Coats's authority to insert a legal description. If U.S. Eagle wished to modify this term, it was required to timely contact the Nishikawas with a counteroffer. U.S. Eagle failed to present such counteroffer. U.S. Eagle contends that it had authority to unilaterally void the contract by revoking its agency authority. But U.S. Eagle and the Nishikawas freely entered an agreement and the existence of this agreement precluded agency revocation. The agreement satisfied the statute of fraud's requirement of attaching a legal description and is enforceable. Agents' Duties Ά19 U.S. Eagle also asserts that the dual agents violated their duties of loyalty and fair dealing by (1) failing to disclose that a conflict of interest arose after U.S. Eagle informed Windermere that it intended to abandon the deal and (2) addending the legal description, an act that hurt U.S. Eagle's negotiation position and helped the Nishikawas enforce the agreement. U.S. Eagle cites RCW 18.86.060(2)(a)-(b), entitled "Dual AgentDuties," in its brief. But U.S. Eagle did not sue Windermere or its employees, Lee and Coats. See CR 19(a) (mandating joinder of a party if the court cannot afford complete relief in the party's absence). And U.S. Eagle presents no authority, and we have found none, to show that an appropriate remedy for such violations is to rescind the underlying contract when fraud is not alleged. U.S. Eagle cannot raise a claim of breach of a fiduciary relationship in this action, and summary judgment was also inappropriate on this ground. Meeting of the Minds Ά20 U.S. Eagle next argues that summary judgment was appropriate because the parties did not form a valid and binding contract, theorizing that the Nishikawas did not have a "meeting of the minds" over the issue of environmental indemnification. The Nishikawas argue that the contract contained all necessary terms and that the trial court erred when it denied their motion for summary judgment. We agree with the Nishikawas that, based on this record, there is no genuine issue of material fact regarding the meeting of the minds. But, for reasons discussed below, we decline to grant summary judgment to the Nishikawas. Ά21 U.S. Eagle cites only one case for its "meeting of the minds" argument, Knight v. American National Bank, 52 Wn. App. 1, 4, 756 P.2d 757, review denied, 111 Wn.2d 1027 (1988). In Knight, the court explained that the statute of frauds requires that an agreement to sell real estate must be reduced to a written memorandum that embodies " 'all essential and material parts of the contemplated [agreement] with sufficient clarity and certainty to indicate the parties' meeting of the minds on all material terms with no material matter left for future agreement or negotiation.' " 52 Wn. App. at 4 (quoting Saunders v. Callaway, 42 Wn. App. 29, 36, 708 P.2d 652 (1985)). U.S. Eagle asks us to void its contract because Kim wanted an environmental indemnity, the term was material to him, and the term is not in the contract. Ά25 In short, the purchase and sale agreement was valid under the statute of frauds and the Nishikawas met their burden to show that no genuine issue of material fact exists. Availability of Injunctive Relief Ά27 U.S. Eagle also asserts that injunctive relief is not available for the Nishikawas' claim and their damages should be limited to earnest money. The Nishikawas claim they are entitled to specific performance because they will incur great tax liability unless they purchase this specific property. Attorney Fees Ά29 The trial court awarded U.S. Eagle $10,500 in attorney fees and costs when it granted the company's summary judgment motion. In reversing summary judgment, this award is also necessarily reversed. Ά30 In conclusion, we reverse the grant of summary judgment for U.S. Eagle and the accompanying grant of attorney fees. We affirm the denial of summary judgment for the Nishikawas and remand for further proceedings consistent with this opinion. BRIDGEWATER and PENOYAR, JJ., concur.