Opinion
No. 60506-2-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for Island County, No. 02-2-00884-9, Vickie I. Churchill, J., entered July 26, 2007.
Affirmed in part and remanded by unpublished opinion per Schindler, C.J., concurred in by Cox and Leach, JJ.
UNPUBLISHED OPINION
In 1998, Deanne DeWitt purchased a house on Whidbey Island from Alan D. Bryant. The house is located on the beach at the base of a 250-foot vertical bluff. After a landslide in 2001, DeWitt sued Bryant for damages, claiming that he failed to disclose the potential risk of a landslide. Bryant argued that because he provided DeWitt with a geological report that described the risk of a landslide, and that he did not have to provide information about a previous landslide that caused no damage to the property, he was not liable for damages. After an eight-day trial, the jury returned a verdict in favor of Bryant. DeWitt appeals, seeking reversal and a new trial. DeWitt contends that the sanctions the trial court imposed against Bryant for violating the discovery rules were inadequate and the court erred in refusing to allow her to make a record. DeWitt also contends the court erred by giving the jury instructions on the duty of good faith and vicarious liability and by failing to give her proposed jury instruction about the common law duty to speak. In addition, DeWitt argues the trial court erred in denying her motion for a new trial, failing to exclude the time devoted to discovery violations from the award of attorney fees, and failing to make sufficient findings to support the attorney fee award and enter written findings. We remand to determine whether the time spent on the discovery violations should be segregated from the award of attorney fees and to enter written findings. In all other respects, we affirm.
FACTS
In 1995, Alan D. Bryant purchased a beach front house on Whidbey Island from Lowell and Joanne Hannah. The house is located north of Clinton in the Brighton Beach area at the base of a nearly vertical 250-foot bluff. The house is accessible by a steep one-way community driveway. There is a six-foot retaining wall on the property located across from the bluff and next to the driveway. In the "Real Property Transfer Disclosure Statement" (Form 17), under "other conditions or defects," the Hannahs stated that reports by geologist Gerald W. Thorsen "from 12/90 and 9-22-93" were "available for review by the buyer as to bank composure/stability."
The 1990 Thorsen report describes the geological composition of the property and the bluff. The report states that the home site and the adjacent shoreline properties were "reportedly created by 'fill' from the bank above." The report states that the upper bank of the bluff is covered by dense brush, but "appears to be made up of sand and pebbly sand" and the lower bank is "largely made up of cohesive sand and silty sand." The report also notes "flows of mud carrying woody debris are very common along bluffs fringing Puget Sound. . . ." and that "[i]n some cases, large trees falling can cause more damage than the mud." At the conclusion of the report, Thorsen recommends building a bulkhead to protect the home "not only from current small mudflows but from possible flows of several hundred cubic yards should currently disturbed material come down in a short period of time or similar slides occur in the future."
In 1993 Thorsen prepared a two page update. In the update, Thorsen states that there were "no significant changes" since the 1990 report. But Thorsen notes that there was "a small flow of mud and debris" in 1992 and a "?small plop' of mud and debris" on the property in 1993. Thorsen also notes that the Hannahs had followed his recommendation to install a bulkhead to prevent erosion from reaching the house.
In 1996, Bryant and a neighbor hired a logger to cut down some trees. While doing so, the logger cut also down some trees at the top of the bluff that was on another neighbor's property.
In early January 1997, heavy rains caused landslides along the bluff severely damaging a number of houses, cars, and property in the Brighton Beach area. However, according to Bryant and his neighbors, there was no damage to Bryant's property from the 1997 landslide. Bryant took photographs of his property a few days after the landslide. The photographs showed damage and debris south of Bryant's property, but none on his property. Bryant's neighbors paid to clean up the debris on the road from the landslide. Because there was no damage to his property, Bryant was not asked to contribute to the cleanup.
In spring of 1997, Bryant retained a geologist to inspect the bluff. The geologist did not prepare a written report. The geologist told Bryant that there was nothing that could be done to guarantee that a landslide would not damage his property. The geologist recommended that Bryant cut down all the trees on the bluff that were top heavy, but leave the roots in place to stabilize the slope as much as possible.
In 1998, Bryant listed his house for sale with a real estate agent at Windemere Real Estate. In the Form 17 Real Property Transfer Disclosure Statement, Bryant stated that there was no "settling, soil, standing water, or drainage problems on the property." In response to Question 7C, whether there was any material damage to any structure from "fire, wind, floods, beach movements, earthquake, expansive soils, or landslides," Bryant answered "yes." In response to Question 9A, "Are there any other material defects affecting this property or its value that a prospective buyer should know about?," Bryant answered "no." However, Bryant instructed the Windemere agent to provide the Thorsen report to any prospective buyers. Bryant also testified that he discussed whether to include information about the 1997 landslide in the Form 17 with his real estate agent and she advised him that he did not need to report landslide damage to his neighbors' property.
On September 19, 1998, Deanne DeWitt made an offer to purchase Bryant's house for $295,500. Before making the offer, DeWitt was provided with Bryant's Form 17. The offer included a ten-day inspection contingency. DeWitt said that she planned to have an expert inspect the stability of the bluff. Bryant accepted the offer on September 19. On September 20, Bryant's real estate agent provided the 1990 Thorsen report to DeWitt.
After Bryant accepted the offer, DeWitt visited the property again and noted that the previous owners had built the bulkhead Thorsen recommended in the 1990 report. DeWitt also contacted Bryant's insurance agent to find out whether Bryant had filed any claims and whether she could obtain landslide insurance. The insurance agent told DeWitt that no claims had been filed and she could obtain landslide insurance coverage for the property. After reading the 1990 Thorsen report, inspecting the property, and talking to Bryant's insurance agent, DeWitt decided to waive the inspection contingency and purchase the property.
In 2001, heavy rains caused landslides along the bluff. Mud and debris covered the access road and damaged the adjacent bulkhead on DeWitt's property. Mud from the landslide also covered DeWitt's yard and garden and there was some water damage to the house and the seawall. In addition, DeWitt's fence, parking area, boat ramp, storage shed, trailer, boat, firewood, building materials, deck, and a window were damaged by the landslide.
DeWitt sued Bryant for fraudulent concealment, negligent misrepresentation, and breach of the duty of good faith and fair dealing. DeWitt alleged that Bryant failed to accurately disclose the risk of landslides in the Form 17 or otherwise.
DeWitt also sued Windermere. DeWitt settled with Windemere before the trial began in May 2007.
At trial, DeWitt testified that because Bryant provided her with the 1990 Thorsen report, she decided to waive the inspection contingency. DeWitt said that if she had known about the 1993 Thorsen report, the trees that had been cut down on the bluff in 1996, the 1997 landslide, and the inspection of the geologist in 1997, she would not have purchased the property. DeWitt's real estate agent testified that he believed the 1990 Thorsen report was the most recent report available and assumed there had been no landslide activity since then. DeWitt used a video taken by a neighbor (the Hisey video), to show the jury the damage caused by the 1997 landslide. The video's quality was poor. The Hisey video did not show any damage to Bryant's property. However, the video showed a damaged Volkswagen that was about five feet from the property line and a wood pile located next to the property line. DeWitt also presented expert testimony at trial on damages. DeWitt's experts recommended building a wall to shore up the bluff and to prevent future landslides at a cost of approximately $500,000.
Bryant's theory at trial was that DeWitt was clearly aware of the risk of landslides when she purchased the property. Bryant asserted that he accurately answered the questions on the Form 17 and that by providing the 1990 Thorsen report, he disclosed that the bluff was unstable and subject to mudflows and landslides. During his testimony, Bryant admitted that he did not tell DeWitt about the 1997 landslide. He said that he did not disclose information about the 1997 landslide in the Form 17 because the landslide did not cause any material damage to his property. Bryant testified that when he visited the property on either January 4 or 5, he took photographs of his property and the damage to his neighbors' property. Bryant's expert appraiser testified that, even taking into consideration the history of landslides, the property was worth between $700,000 and $725,000.
Bryant's former next-door neighbor, Ted Rosengren, described the damage to his property from the 1997 landslide and testified that there was no damage to Bryant's property. Bryant's former neighbor's daughter, Judith L. Anderson, also testified that there was surprisingly little damage to Bryant's property from the 1997 landslide, "His property was not inundated at all other than the little slurry, mud slurry on the back road behind where his property joined our [property]." On cross examination, Anderson said that she had a video of the 1997 landslide. Anderson testified that she reviewed the video before testifying and that she had previously provided a copy of the video to Bryant.
Based on Anderson's testimony, DeWitt's attorney asked the court to impose discovery sanctions against Bryant for failing to produce the Anderson video in response to her discovery requests. DeWitt's attorney also stated that after having the opportunity to review the video, he wanted to talk to Anderson again. The court then asked the attorney, "Will that occur today? Or perhaps another day? . . . Do you want her to sit outside in the hallway for the rest of the day?" In response, DeWitt's attorney said, "No, no, no. She can — she can leave." Before leaving the witness stand, Anderson said that she was leaving in two days to go on vacation.
The next day, DeWitt's attorney renewed the request for discovery sanctions against Bryant based on his failure to supplement answers to interrogatories and produce the Anderson video. DeWitt's attorney told the court that he had called Anderson the night before and asked her to come to court but Anderson said she could not because she did not have child care. DeWitt's attorney also said that when Anderson expressed concern about talking to him, he told her "you don't have to talk to me if you don't want to." However, DeWitt's attorney told Anderson that he would tell the court he had spoken to her and that she refused to answer his questions.
Bryant admitted that Anderson had given him the video and he should have produced it. Nonetheless, Bryant argued that even though the Anderson video showed some debris on his property, the video did not reflect his knowledge of any damage to the property caused by the 1997 landslide.
The court found that Bryant violated the discovery rules by failing to supplement his answers to interrogatories and produce the Anderson video. DeWitt asked the court to consider imposing one of three alternative sanctions: (1) strike Bryant's defense that the 1997 landslide did not damage his property, (2) instruct the jury that Bryant breached the discovery rules and allow DeWitt to reopen her case to impeach his credibility, or (3) grant a mistrial. The court ruled that the appropriate sanction was to allow DeWitt to reopen her case and use the video to impeach Bryant. The court also allowed DeWitt to first question Bryant outside the presence of the jury.
During the testimony outside the presence of the jury, Bryant conceded that the Anderson video showed some mud on the corner of his property. However, Bryant maintained that his earlier testimony that there was nothing on his property was an accurate statement of the condition of his property when he visited and took photographs after the landslide.
Before resuming the trial, the court informed the parties that the bailiff had contacted Anderson. Anderson made it clear that she was not going to come to court that day because of child care issues. Anderson also reiterated that she was leaving town the next day and would not return until the end of the following week. The court then offered DeWitt the option of continuing the trial:
There are some things that we can do to try [to] accommodate everybody here. One of the options is to send the Jury home and convene on Tuesday. It's not my favorite choice because — And I would assume it's not your favorite choice — because of the length of time that they would be away from the trial. But that is one thing I can do.
The other — That would allow you some time to talk with your experts and do things of that nature. But I would like to offer that.
And there is another. And that is to get the video in front of them today.
It's up to you, sir.
In response, DeWitt's attorney stated that she "would like to proceed."
When the trial resumed, Bryant testified that he visited the property on either January 2 or 3 before the Anderson video was taken on January 4. Bryant said that he did not provide the Anderson video to DeWitt because it did not accurately reflect the property when he saw it in 1997. Bryant reiterated that when he visited the property, there was no mud or debris on it. However, Bryant conceded that the Anderson video showed some mud and debris.
DeWitt's attorney then showed the Anderson video to the jury. The Anderson video is of better quality than the Hisey video and more clearly shows the damage to the neighbors' properties from the 1997 landslide. The video also includes some footage of a man moving firewood from a wood pile that is either on or next to Bryant's property, and removing brush from around some cars near the property that was damaged by the landslide.
During his examination, Bryant introduced three additional photographs that he said accurately depicted the condition of his property. The photographs do not show the mud or the debris shown in the Anderson video.
At DeWitt's request, the court instructed the jury that "a party is under a duty to amend a prior request for discovery, which includes Interrogatories, Requests for Production and Requests for Admissions when he obtains information that his prior response, though correct when made, is no longer true."
The next day, DeWitt's attorney claimed that because Anderson did not come to court, DeWitt was unable to make a record and requested additional sanctions against Bryant. The court asked whether DeWitt was requesting a continuance until Anderson returned. In response, DeWitt's attorney said, "No." The court denied DeWitt's request for additional sanctions. The court ruled that DeWitt had the opportunity to question Anderson when she testified, "As to Ms. Anderson. She said on the stand that she was taking a vacation. And you had the opportunity then to ask that the Jury be dismissed and talk with Ms. Anderson outside the presence of the Jury and did not."
In closing and in rebuttal, DeWitt argued that Bryant's failure to disclose the Anderson video showed that Bryant had lied about the extent of the damage to his property from the 1997 landslide and was not credible.
The jury returned a verdict in favor of Bryant. In the special verdict form, the jury found that Bryant was not liable for negligent misrepresentation, innocent misrepresentation, fraud, fraudulent concealment, or breach of the duty of good faith and fair dealing. Based on the purchase and sale agreement, the court awarded Bryant attorney fees. The court denied DeWitt's motion for a new trial and for reconsideration. DeWitt appeals.
ANALYSIS
Discovery Sanctions
DeWitt asserts that the trial court abused its discretion in denying DeWitt's request to impose additional sanctions against Bryant for violating the rules of discovery. DeWitt also asserts that the court erred in refusing to allow DeWitt to adequately develop a record regarding Bryant's failure to produce the Anderson video of the 1997 landslide.
A trial court has broad discretion in imposing discovery sanctions. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). "We review the trial court's sanctions under an abuse of discretion standard that (1) gives the trial court wide latitude in determining appropriate sanctions, (2) reduces trial court reluctance to impose sanctions, and (3) recognizes that the trial court is in a better position to determine this issue." Hyundai Motor America v. Magana, 141 Wn. App. 495, 509, 170 P.3d 1165 (2007), review denied, 164 Wn.2d 1020, 195 P.3d 89 (2008). "A trial court abuses its discretion when its order is manifestly unreasonable or based on untenable grounds." Wash. State Phys. Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
It is the trial court's function to determine what the sanctions should be and against whom they should be imposed, based on its factual inquiry. Fisons, 122 Wn.2d at 355. The court should impose the least severe sanction that will be adequate to serve its purpose. In doing so, the court may consider the wrongdoer's lack of intent to violate the rules. Fisons, 122 Wn.2d at 356. It is the trial court's prerogative to determine credibility. Hyundai Motor, 141 Wn. App. at 512.
We conclude the trial court did not abuse its discretion in denying DeWitt's request to impose additional sanctions against Bryant for failing to produce the Anderson video. Any possible prejudice resulting from Bryant's discovery violation was addressed by the availability of the Anderson video at trial, the court's instruction to the jury about the duty under the discovery rules, and giving DeWitt the opportunity to impeach Bryant with the video at trial to show that he was not credible.
The crux of DeWitt's theory at trial was that Bryant was not credible. In opening statement, DeWitt's attorney told the jury, "[t]his is a case about Dr. Alan Bryant." In closing, DeWitt's attorney used the discovery violation to argue that Bryant was not credible, stating "there's a parallel . . . between the way that Dr. Bryant was acting in — in the conduct of this case and before you in this courtroom and the — the type of fraud that he committed on my client." DeWitt's attorney went on to argue that Bryant's decision to not disclose the Anderson video was similar to his decision to not disclose the 1993 Thorsen report, information about the 1997 landslide, and his conversation with a geologist in 1997.
We also conclude that the record does not support DeWitt's argument that she was denied the opportunity to make a record regarding Bryant's failure to produce the Anderson video. After Anderson testified, the trial court gave DeWitt's attorney the opportunity to question her, because Anderson had made it clear that she was going on vacation in two days. Nonetheless, DeWitt's attorney declined the offer to question Anderson. And when Anderson could not return to testify, DeWitt's attorney also rejected the court's offer to continue the trial.
Jury Instructions
DeWitt asserts that the jury instruction on the implied covenant of good faith and fair dealing misstates the law because it only allowed the jury to consider the terms in the purchase and sale agreement that gave Bryant discretion authority. DeWitt also contends that no evidence supported the jury instruction on vicarious liability, and the court erred in failing to give her proposed jury instruction on the common law duty to speak.
We review errors of law in jury instructions de novo. Hue v. Farmboy Spray Co., Inc., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). A jury instruction that erroneously states the law is reversible error only if it prejudices a party. Hue, 127 Wn.2d at 92. "Instructions that are merely misleading are not grounds for reversal unless they cause prejudice." Thola v. Henschell, 140 Wn. App. 70, 84, 164 P.3d 524 (2007). An error is only prejudicial if it "presumptively affects the outcome of the trial." Boeing Co. v. Key, 101 Wn. App. 629, 633, 5 P.3d 16 (2000). When taken as a whole, jury instructions must properly inform the jury of the applicable law, not be misleading, and permit each party to argue its theory of the case. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999).
A. Jury Instruction No. 15
Instruction No. 15, the jury instruction on the implied covenant of good faith and fair dealing, provides in pertinent part:
A duty of good faith and fair dealing is implied in every contract. This duty requires the parties to cooperate with each other so that each may obtain the full benefit of performance. Plaintiff Deanne DeWitt claims to have suffered damages as a result Defendant Bryant's breach of the implied duty of good faith and fair dealing. To prevail, plaintiff must prove by a preponderance of the evidence that:
(i) A specific term of the contract between the parties grants to Bryant discretionary authority to determine contract terms, and
(ii) Bryant has breached the duty of good faith and fair dealing in his exercise of that discretionary authority. DeWitt relies on the language in Goodyear Tire Rubber Co. v. Whiteman Tire, Inc., 86 Wn. App. 732, 739, 935 P.2d 628 (1997), that "the duty of good faith and fair dealing applies when one party has discretionary authority to determine certain terms of the contract. . . ." Goodyear, 86 Wn. App. at 739 (quoting Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995)), to argue that Instruction No. 15 should have stated that the duty of good faith and fair dealing applies when either party has the discretion to determine contract terms. Specifically, DeWitt contends that because the jury instruction did not refer to her duty of good faith in exercising her right to inspect the bluff during the ten-day contingency period, she was unable to argue to the jury that Bryant breached the implied covenant of good faith and fair dealing by making misrepresentations that prevented her from proceeding with the inspection.
While the Goodyear court stated that the duty of good faith and fair dealing can apply when either party to a contract has discretionary authority, the issue in this case was whether Bryant breached his duty of good faith and fair dealing, not whether DeWitt breached her duty of good faith and fair dealing. Goodyear, 86 Wn. App. at 739. And contrary to her assertion otherwise, DeWitt was not prevented from arguing that because of Bryant's misrepresentations, she did not obtain an inspection of the bluff.
DeWitt's proposed instruction on good faith and fair dealing also undermines her argument on appeal. DeWitt's proposed instruction does not include any language about DeWitt's discretionary authority. Instead, it provides,
Plaintiff Deanne DeWitt claims to have suffered damages as a result Defendant Allan Bryant's breach of the implied duty of good faith and fair dealing. To prevail, plaintiff must prove by a preponderance of the evidence that: Defendant breached the implied duty of good faith and fair dealing; Plaintiff suffered actual damages as a result.
DeWitt argued to the jury that Bryant purposefully mislead her in order to prevent her from exercising her right to inspect the bluff before purchasing the property. For example, in closing argument, DeWitt's attorney argued:
During the inspection contingency — And only then — does he go and out of all the facts that he know, he gives [her] the oldest thing . . .
I mean, there's a massive landslide on this property in 1997. He's got to know when he's giving a report from 1990, those blackberries and so forth that are talked about in the 1990 report, those things came down and were hauled off in a truck. That is no longer — He knows that thing is obsolete. That's is [sic] outdated. And he gives it totally out of context and totally for the purpose —
She says, 'I'm going to get the bluff inspected, because I want to get a geologist's opinion on this bluff.'
He says, 'Ah, I got one. Here you go. Have this report from 1990,' knowing full well that that report gives a misstatement of the condition of that bluff in light of the circumstances that happened afterwards.
And in rebuttal, DeWitt's attorney argued:
When you sign a contract, you are not supposed to be going at signing a contract — Which they had finalized on the 19th — and then immediately go and try to frustrate the purpose of that contract. You are not supposed to doing that. The whole purpose of having a contract is the parties are supposed to cooperate, they're supposed to be working together and so forth. The idea that after this contract is inked he starts doing all this misrepresentation, half-truths, he gives the 1990 report, he doesn't but [sic] it in context. He's doing all of this stuff to go oh he these are all discretionary acts on the part of the Defendant. No one — No one told him you must produce this 1990 report. My client identified that she was going to have this bluff inspected. He's the one who goes out, knowing that they've negotiated for this contractual inspection period and he gives her just part of the truth when he noses [sic] that she's going to get this place inspected.
This is the kind of act that you cannot do what you have a contract to go and try to frustrate the purpose by telling lies and half-truths to discourage my client from going forward with her contractually negotiated and bargained for inspection contingency. No. You don't get to do that.
He knew from these circumstances that she wanted that bluff looked at. And by giving her a report from a geologist, hey, it looks like it doesn't need to be done anymore.
Based on the record, we conclude that the court did not err in giving the jury Instruction No. 15.
B. Jury Instruction No. 25
DeWitt asserts that the court erred by instructing the jury on vicarious liability in Instruction No. 25. DeWitt's primary argument is that there is no evidence in the record to support section 1(b)(ii) of Instruction No. 25 and that the error was prejudicial.
DeWitt also contends Instruction No. 25 was "hopelessly confusing and misleading to the jury."
Instruction No. 25 provides:
The defendant has the burden of proving the following affirmative defense claimed by the defendant.
(1) A principal is not liable for an act, error, or omission by an agent or subagent of the principal arising out of an agency relationship:
(a) Unless the principal participated in or authorized the act, error, or omission; or
(b) Except to the extent that:
(i) The principal benefited from the act, error, or omission; and
(ii) the court determines that it is highly probable that the claimant would be unable to enforce a judgment against the agent or subagent.
The purpose of Instruction No. 25 is to inform the jury that Bryant had the burden of proving the affirmative defense that he was not liable for the acts or omissions of his real estate agent. There is evidence that Bryant instructed his Windemere real estate agent to give prospective buyers the 1990 Thorsen report and that Bryant never received the 1993 Thorsen report. However, there is no evidence in the record that the court determined it was "highly probable" that DeWitt "would be unable to enforce a judgment" against Bryant's real estate agent. Consequently, we agree that it was error to include the language in section 1(b)(ii).
When a jury instruction is erroneous, we must determine whether the error was prejudicial, that is, whether the error affected the outcome of the trial. See Boeing, 101 Wn. App. at 633. Here, because the jury found in its special verdict that Bryant was not liable for negligent misrepresentation, innocent misrepresentation, fraud, or fraudulent concealment, we conclude the erroneous language in section 1(b)(ii) of Instruction No. 25 did not prejudice DeWitt.
C. Jury Instruction No. 20
Dewitt also asserts that the trial court erred by refusing to give her proposed instruction on the common law duty to speak. DeWitt's proposed Instruction No. 20 provides:
Where a person is under no obligation to speak as to a matter, if the person undertakes to do so, either voluntarily or in response to inquiries, the person is bound not only to state truthfully what he or she tells, but also not to suppress or conceal any facts within the person's knowledge that will materially qualify the facts stated. If a person speaks at all, the person must make a full and fair disclosure.
"A party is entitled to an instruction only if the proposed instruction accurately states the law and substantial evidence supports the proposed instruction." State v. Edwards, 84 Wn. App. 5, 14, 924 P.2d 397 (1996). We review a trial court's decision to reject a jury instruction for abuse of discretion. State v. Hall, 104 Wn. App. 56, 60, 14 P.3d 884 (2000). The refusal to give an instruction warrants reversal only if a party cannot argue its theory of the case or if the instructions as a whole are misleading or do not inform the jury of the applicable law. Hill v. Cox, 110 Wn. App. 394, 407, 41 P.3d 495 (2002).
Here, DeWitt does not challenge the jury instructions the court gave on negligent misrepresentation and fraudulent concealment. The instructions on negligent misrepresentation and fraudulent concealment include Bryant's common law duty to give DeWitt information about the property. The court also instructed the jury, that "Failure to disclose facts that a party has a duty to disclose is equivalent to a false representation" and "When a buyer makes inquiries of the seller regarding a material matter within the seller's knowledge, the seller owes a duty to the buyer to answer truthfully." Because the instructions as a whole correctly instruct the jury on Bryant's common law duty to disclose, we conclude that the court did not err by refusing to give DeWitt's proposed instruction No. 20.
Instruction No. 7 on negligent misrepresentation provides in part, "To prevail on a negligent misrepresentation claim, plaintiff must establish that the defendant breached a duty to disclose or provide accurate information about the property." Instruction No. 13 on fraudulent concealment states that DeWitt has the burden of proving "(i) that Bryant had actual knowledge of the material defect, and (ii) that Bryant willfully failed to disclose the defect to Deanne DeWitt."
DeWitt's reliance on Associated Indem. Corp. v. Del Guzzo, 195 Wn. 486, 81 P.2d 516 (1938) and Ikeda v. Curtis, 43 Wn.2d 449, 460, 261 P.2d 684 (1953) is misplaced. Del Guzzo only addressed a surety's duty to provide information. The court held that,
If a surety, before entering into the contract of suretyship, applies to the creditor for information touching any material matter, he is bound, if he assumes to answer the inquiry at all, to give full information as to every fact within his knowledge, and he can do nothing to deceive or mislead the surety without vitiating the agreement.
Del Guzzo, 195 Wn. at 510. And contrary to DeWitt's argument, here, as in Ikeda, the jury was instructed on the elements of fraud. In sum, because the jury instructions correctly informed the jury of the law, the court did not err in refusing to give proposed Jury Instruction No. 20.
Motion for a New Trial
DeWitt contends that the trial court erred in denying her motion for a new trial based on Bryant's discovery violation, the claim that Bryant and his attorney committed misconduct, that the video constituted newly discovered evidence, and irregularity in the proceedings. We review a trial court's decision on whether to grant a new trial for abuse of discretion. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997).
Under CR 59(a), grounds for a new trial include:
(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;
(2) Misconduct of prevailing party or jury; and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict or to a finding on any question or questions submitted to the jury by the court, other and different from his own conclusions, and arrived at by a resort to the determination of chance or lot, such misconduct may be proved by the affidavits of one or more of the jurors; . . .
. . .
(4) Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial[.]
DeWitt primarily relies on Roberson v. Perez, 123 Wn. App. 320, 336, 96 P.3d 420 (2004), to assert that she was not required to demonstrate materiality based on new evidence that was not produced as a result of a discovery violation. Roberson is distinguishable. In Roberson, the discovery violations did not come to light until after trial and after entry of the judgment. Roberson, 123 Wn. App. at 338. Consequently, in that case no sanction other than a new trial was available.
Here, unlike in Roberson, the trial court addressed the discovery violation during trial and the record supports the trial court's finding that Bryant's conduct was not willful. In ruling on DeWitt's motion for a new trial, the trial court expressly found that "Bryant was credible that he forgot about the video until it was brought up by Ms. Anderson at trial and that he did not recall viewing the video until he viewed it the night following Ms. Anderson's testimony." The court also noted that DeWitt refused the court's offer of a continuance and instead chose to proceed and that the sanction at trial was "the least severe sanction that would be adequate to serve the purpose." In addition, the trial court ruled that the Anderson video was not newly discovered evidence under CR 59 because the jury "had full opportunity to view the Anderson video, the Hisey video of the same area, and Dr. Bryant's photographs. The Jury heard Plaintiff argue at great length that the Anderson video showed the slide to be on Bryant's property." We conclude the court did not abuse its discretion by denying DeWitt's motion for a new trial.
Attorney Fees
DeWitt asserts that the trial court abused its discretion by failing to segregate the attorney fees for the time spent on Bryant's discovery violation during trial and the court's findings of fact and conclusions of law do not support the attorney fee award.
The amount of a fee award is discretionary and we will overturn the award only if there is a manifest abuse of discretion. Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665 (1987). Washington courts use the lodestar approach in awarding attorney fees. Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 593, 675 P.2d 193 (1983). In determining the lodestar, the court multiplies the reasonable hourly rate by the number of hours reasonably expended on the lawsuit. Bowers, at 593. "If attorney fees are recoverable for only some of a party's claims, the award must properly reflect a segregation of the time spent on issues for which fees are authorized from time spent on other issues." Mayer v. City of Seattle, 102 Wn. App. 66, 79-80, 10 P.3d 408 (2000).
The court must also create an adequate record of the award of attorney fees for appellate review. Leoffelholz v. Citizens for Leaders with Ethics and Accountability Now, 119 Wn. App. 665, 690, 82 P.3d 119 (2004). Findings of fact and conclusions of law are required to establish such a record. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998). "Failure to create an adequate record will result in a remand of the award to the trial court to develop such a record." Mayer, 102 Wn. App. at 79.
Here, the only finding by the court that is related to the time spent on the discovery violation, is the court's conclusory statement that "Plaintiff did not incur any additional cost, expense, attorney fees, or other injury as a consequence of the fact that the Anderson video was not available until trial." Under Mahler, we must remand to create an adequate record on whether the time spent on Bryant's discovery violation should be segregated.
We remand on the question of whether the time spent on the discovery violation should be segregated and to enter written findings on the attorney fee award. In all other respects, we affirm. Because Bryant is the substantially prevailing party on appeal, upon compliance with RAP 18.1, Bryant is entitled to attorney fees on appeal under the purchase and sale agreement and RAP 14.2.