Jonathan Deegan v. Windermere Real Estate/center Isle, Inc.
197 Wash. App. 875
| Wash. Ct. App. | 2017Background
- Deegan (purchased 2006) and O'Grady (purchased 2011) bought homes on Whidbey Island where military jet noise from NAS Whidbey Island is significant.
- Island County Code (ICC) 9.44.050 requires sellers and agents to provide a specific, detailed airport-noise disclosure and map; ICC 9.44.060 places the obligation on owners and their agents.
- Buyers instead received a generic Form 22W notice that mentioned possible airport noise but omitted the detailed warnings and map required by ICC 9.44.050.
- Plaintiffs filed a class action under Washington's Consumer Protection Act (CPA), alleging the listing agents’ omission of the ICC-mandated information was an unfair or deceptive practice.
- The trial court granted defendants’ CR 12(b)(6) motion, dismissing the CPA claim and holding (1) plaintiffs had a duty to inquire and (2) Deegan’s claim was time-barred.
- The Court of Appeals reversed, holding the complaint (with hypothetical facts and the rebuttable presumption of reliance for omissions) sufficiently pleaded a CPA omission claim and that accrual under the discovery rule was unresolved on the pleadings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of ICC‑required disclosures can state a CPA claim | O'Grady/Deegan: failure to provide ICC 9.44.050 material disclosures is a deceptive omission actionable under the CPA | Listing agents: generic Form 22W put buyers on notice; CPA claim fails because no deceptive practice and caveat emptor applies | Held: Omission of ICC‑required material facts may state a CPA claim; complaint survives CR 12(b)(6) when viewed with hypothetical facts and presumption of reliance |
| Whether plaintiffs had a duty to inquire that defeats the omission‑based CPA claim | Plaintiffs: no duty to investigate; omission makes reliance impracticable and triggers rebuttable presumption of reliance | Defendants: Douglas v. Visser imposes a duty to investigate once put on notice; dismissal proper | Held: Douglas does not impose a CPA duty to inquire here; defendants failed to show a legal duty to inquire on the pleadings |
| Whether the public‑interest element or state seller‑disclosure statute precludes a CPA claim | Plaintiffs: omissions affect the public interest and are independent of RCW 64.06 seller‑disclosure scheme | Defendants: RCW 64.06 governs disclosure and excludes matters from CPA; county disclosure is preempted or nonpublic | Held: RCW 64.06 does not preclude an independent CPA omission claim; public‑interest and non‑preemption arguments insufficient at pleading stage |
| Whether Deegan’s CPA claim is time‑barred (accrual/statute of limitations) | Plaintiffs: discovery rule applies; unresolved when plaintiffs knew or should have known the legal basis for a CPA claim | Defendants: facts were public; claim accrued at purchase (2006) and is barred | Held: On the pleadings, it is unresolved when Deegan knew or should have known the basis for his claim; dismissal on statute of limitations was error |
Key Cases Cited
- Schnall v. AT&T Wireless Servs., Inc., 171 Wn.2d 260 (Wash. 2011) (distinguishes causation for affirmative misrepresentations and acknowledges difficulty of proving reliance for omissions)
- Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59 (Wash. 2007) (CPA causation requires some causal link; discusses reliance)
- Douglas v. Visser, 173 Wn. App. 823 (Wash. Ct. App. 2013) (buyer given inspector’s report had duty to inquire as to defects in fraud/negligence context; relied on by defendants but distinguished here)
- Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778 (Wash. 1986) (framework for evaluating public‑interest element of CPA)
- Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83 (Wash. 2012) (accurate statements may nevertheless be deceptive when accompanied by misleading omissions)