Opinion
No. 58738-2-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-30865-6, Andrea A. Darvis, J., entered August 11, 2006.
Affirmed by unpublished opinion per Appelwick, C.J., concurred in by Grosse and Baker, JJ.
Byers of a hotel appeal the trial court's order for summary judgment in favor of the seller. The buyers claim that the seller breached the original purchase and sale agreement when the seller conditioned closing of the sale on the consent of the lessor of the property on which the hotel is located. The seller argues that the buyers consented to the conditions upon signing the documents in escrow and taking action to meet those terms. The seller maintains that it did not breach the purchase and sale agreement because it executed all documents necessary to the transaction. We affirm.
FACTS
Renton Silver Cloud Motel Limited Partnership (RSC) is a Washington limited partnership. RSC owns the Renton Silver Cloud Inn. RSC's general partner is Silver Cloud, Inc., a Washington corporation. James Weymouth is the president of Silver Cloud Inc. James Korbein is the Secretary/Treasurer of Silver Cloud, Inc.
Ramac Inc. owns the property on which the Renton Silver Could Inn is located, and leases the land to RSC. Daniel Shane owns Ramac Inc., and is also a minority limited partner in RSC.
Omar and Christine Lee (Lees) are individuals who own Great Wall Development § Management, Inc. (Great Wall). Tom Kennedy acted as a real estate agent for the Lees and Great Wall in this transaction. There is no indication in the record that Kennedy worked for anyone other than the Lees. All parties refer to Kennedy as the Lees' broker, authorized agent, or representative. Kennedy refers to the Lees as "my client." Omar Lee declared that Kennedy was acting on their behalf.
While Great Wall, Inc. was to be the original buyer and assignee of the lease, this changed on August 15, when the Lees indicated that they would be the assignee and would assume the lease in their own names. To avoid confusion regarding this change, we refer to the Lees and Great Wall collectively as the Lees throughout this opinion.
In May 2005, Kennedy called Weymouth to explain that the Lees were interested in buying the Renton Silver Cloud Inn. Kennedy and Weymouth met on June 2, 2005, to discuss the possible terms of the sale. At that meeting, Weymouth explained that the hotel was on property that RSC leased from Ramac, Inc. He cautioned Kennedy that the lease provided that in the event of an assignment the rent was to increase to current fair market value. Because the possibility of a rent increase had caused one prior offer or to retract the offer, Weymouth had negotiated with Ramac to fix the ground rent at $140,000 per year in the event of the sale of the hotel and assignment of the lease. Kennedy testified that Weymouth explained all of this to him at their initial meeting, and indicated that Ramac had agreed upon the $140,000 rent.
Kennedy also understood that the lease allowed two different methods of assumption of the lease. If Shane/Ramac consented to the assignment, RSC would be released from the lease and its obligation as guarantor. Without Shane/Ramac's consent, RSC would remain liable as guarantor for five years.
On May 31, 2005, Kennedy prepared a letter of intent which was signed by Weymouth/RSC as the seller and the Lees as the buyer. In an addendum, the letter of intent noted that the property was being sold subject to the lease between RSC and Ramac, Inc., designated the provision for escalation of rent upon transfer, and indicated that the Lees had the right to negotiate directly with Ramac, Inc. for terms amending the lease. Both Omar Lee and James Weymouth signed this letter of intent.
Kennedy then prepared a purchase and sale agreement (PSA) for the transaction. The Lees and RSC signed the PSA on or about June 27, 2005. Kennedy also prepared a "First Amendment to the Purchase and Sale Agreement," which made the transaction subject to a number of contingencies, including a requirement that the "[c]losing date for the sale shall be September 30, 2005, or earlier." The first amendment to the PSA also contained a clause that allowed either party "to close [the] transaction as a part of a tax-deferred exchange under Section 1031 of the Internal Revenue Code," and indicated that the other party was to cooperate with that process. Finally, section 10 of the first amendment to the PSA explained that the Lees were to determine for themselves whether the negotiations for a new lease were satisfactory. Weymouth signed this document on July 8, 2005. Omar Lee signed it on July 9, 2005.
Weymouth forwarded the first amendment to the PSA to Shane "for his review before [Weymouth] was willing to sign since Shane was a partner in RSC as well as the principal of the lessor, and [Weymouth] wanted to assure [Shane] was in agreement with these terms and in agreement with the leasing contingency before [Weymouth] was willing to sign for the partnership." Though the document did not call for Ramac's approval, Shane signed the copy of the first amendment to the PSA and faxed it back to Weymouth. Below his signature, Shane wrote "Approved subject to acceptable lease renegotiation approved by Ra[m]ac, Inc., in Ra[m]ac, Inc.'s sole discretion." Shane did not date his signature, but stated in his declaration that he "signed on behalf of RaMac, Inc. and faxed the signature page back to Mr. Weymouth . . . Mr. Weymouth signed the same page the next day, July 8, and Mr. Lee signed on July 9, 2005." The trial court noted in its memorandum decision regarding Shane's motion for attorney fees, the first amendment to the PSA did not contain a signature line for Shane, and "it appears that he signed it only to evidence that he had no objection to the Lees attempting to negotiate an assignment of the Land Lease with him."
Once the PSA and first amendment to the PSA were executed, Kennedy began negotiations with Shane regarding amendments to the ground lease. In late July, while these negotiations proceeded, Kennedy learned that the Lees needed to close the transaction on or before August 17, 2005, in order to qualify for a Section 1031 tax-deferment. Shane's attorney drafted an amendment to the ground lease reflecting this new closing date and forwarded it to Kennedy. On August 12, Kennedy reviewed the lease amendment, and then emailed it to Karen Reuland, the escrow officer handling the transaction. He noted that it was the "first draft of the lease amendment" and that he was sure that there would be some changes. These negotiations were permitted by the first amendment to the PSA, and recognized by all parties.
The assignment and assumption of land lease, a document separate from the "first draft of the lease amendment," governed the transfer of the lease from RSC to the Lees. RSC sent Kennedy a draft of this assignment and assumption of land lease on August 11. This document required Shane's consent and signature and release from all of the RSC's rights and obligations:
As a condition to such transaction between Grantor and Grantee, said parties require Lessor's consent to such assignment and assumption of Grantor's rights and interests in the Lease and Lessor's release of Grantor and Guarantors from all obligation arising under the Lease from and after the Effective Date, which consent and release are hereby granted by Lessor by its signature below.
The original ground lease, allowed two alternative methods of assignment. Consent was not required to assume the lease as written, with the lessee/assignor remaining liable on the lease. However, lessor consent was required to release the lessee. Lessor consent would also be required to modify the terms of the lease. The assignment and assumption of land lease eliminated the consent-free assignment option.
Kennedy acknowledged receipt of the assignment and assumption of land lease and indicated that he would fax it along with the operating lease to Reuland on August 12. He also told RSC that he was meeting with Mr. Lee that same day in order to "review any other items."
The operating lease was necessary because the earlier closing date meant that the Lees would not have received their franchise or license to operate a Best Western Hotel. Instead, under the terms of the operating lease, Silver Cloud would continue to operate the property under the Silver Cloud name until the Lees obtained their Best Western franchise or license.
On either August 12, 13, or 15, after Mr. Lee toured the property Kennedy called Shane to tell him that the "first draft of the lease amendment" was not acceptable and that the transaction was dead. However, late on August 15, Kennedy called Shane to make another attempt at salvaging the agreement. Shane agreed to Kennedy's proposed changes. Shane's attorney made the necessary changes to the "first draft of the lease amendment." We refer to this new draft as the "second draft of the lease amendment." Though they had requested changes to the lease amendment, neither Kennedy nor Lee asked for any changes to the assignment and assumption of land lease. Neither raised concern regarding the requirement for Shane's signature to release RSC from the lease.
This date is disputed. Shane believes that he received this phone call on August 12 or 13. Others, including James Korbein, Secretary/Treasurer of Silver Cloud, Inc., recalls that the termination occurred after Mr. Lee toured the motel on August 15, and after he met with Kennedy to go over the terms of the proposed lease amendment.
The timing of this call is also disputed. Shane recalls that Kennedy called him on the morning of August 15, while Korbein recalls a phone call from Kennedy regarding the situation on the afternoon of August 15.
The "second draft of the lease amendment" was forwarded by email to Kennedy on August 16 at 4:38 pm. Mr. Lee was out of town, but had given permission to Mrs. Lee to make decisions on their behalf. She was to look for two specific changes in "second draft of the lease amendment." She noted these changes and verified them with Kennedy. Shortly thereafter, Kennedy emailed Shane's attorney, writing "this works."
Earlier that same day, James Korbein had forwarded Kennedy an email with a red-line version of the assignment and assumption of land lease attached. This email contained the warning "the document is not intended to be effective until signed by all parties."
At 5:47 pm on August 16, Kennedy sent an email to Reuland, Shane and the Lees confirming that this "second draft of the lease amendment" (which was titled "[f]irst [a]mendment to [g]round [l]ease"), and the assignment and assumption of land lease, were ready and approved. The "second draft of the lease amendment" transmitted with this email reflected the newly negotiated rental price. At 6:30 pm on August 16, Kennedy emailed Reuland to say that while the Lees still had one minor issue to be resolved relating to the operating lease, the "second draft of the lease amendment" and the assignment and assumption of the land lease were ready for signing on the next day, August 17.
But later in the evening of August 16, Mr. Lee left a voicemail with Shane indicating an objection to the "second draft of the lease amendment" made by Shane's attorney, and that he would not agree to the proposed terms. In his declaration, Mr. Lee testified that in addition to his requested changes to the "first draft of the lease amendment," Shane's attorney had included other significant changes. Shane received this message about 8:30 am on August 17. At 8:50 that same morning, Korbein and Reuland received an email from RSC's attorney with the assignment and assumption of land lease attached. The assignment had been "revised as requested in your voice mail and a voice mail message from the broker, Tom Kennedy, received yesterday." The email also indicated that a copy of the assignment and assumption of land lease had been sent to Shane/Ramac's counsel on August 16. That email instructed Reuland to "[o]btain the signatures and acknowledgement of Ramac, Inc., as lessor," and that "[t]he instrument is NOT to be recorded or delivered to the Assignee until Ramac signs indicating its consent and approval for the document."
Neither Shane, the Lees, or Kennedy told RSC of Mr. Lee's concerns over the "second draft of the lease amendment." Consequently, Korbein, Secretary/Treasurer of Silver Cloud, Inc. went to the escrow office and executed all of the closing documents presented to him. These included the escrow closing instructions, the assignment and assumption of land lease, operating lease, addendum to purchase and sale agreement, the allocation schedule and the agreement of assignment and substitution. The Lees also signed these documents.
However, Shane did not sign the documents, as he explained in his declaration:
I understood from Mr. Kennedy and from Mr. Lee's messages that the Lees were no longer willing to agree to portions of the negotiated agreement, but they wanted me to sign an assignment of the lease. I understood they were asking me to sign an assignment of the lease which released the previous lessee from any personal obligation. This was not something that was required of me by the terms of the lease or of any agreement that I had made, and I was not willing to make that concession if Mr. Lee was not willing to go ahead with his part of the negotiated agreement.
Shane also stated that he understood that the documents that Kennedy and Mr. Lee were asking him to sign were different from the documents that his attorney had reviewed the previous day. He was unwilling to sign changed documents without his attorney's review, and she was unavailable due to a previously scheduled conflict of which all parties were aware.
Finally, Shane stated that it was his belief that on August 17, the sale could have gone forward without his signature because paragraph 13 of the original ground lease allows the lease to be assigned without his consent if three conditions were met. He stated that his attorney had confirmed to him that the Lees had complied with these conditions.
In contrast, Reuland, the escrow agent, believed that without Shane's signature on the assignment and assumption of land lease, she could not close. Consequently, the Lees and Kennedy spent most of August 17 attempting to obtain Shane's signature. They were unsuccessful. In the absence of Shane's signature, Reuland did not close the transaction. As a result, the Lees lost the Section 1031 treatment, which would have allowed them to defer a $1 million tax payment on the sale of their shopping mall as part of the buy/sell exchange for the Silver Cloud Inn. RSC offered to close in accord with the original closing date of September 30, 2005, but this offer was rejected by the Lees.
The Lees filed a complaint on September 21, 2005. In their complaint, they asserted that RSC breached the PSA and that Ramac, Inc., Shane and Weymouth had tortiously interfered with their business expectancy. On February 14, 2006, the trial court dismissed Shane and Ramac on summary judgment. This order is not appealed here. On June 9, 2006, the trial court ordered summary judgment in favor of RSC/Silver Cloud, and dismissed all claims by the Lees. The Lees moved for reconsideration, which was denied. This timely appeal followed.
ANALYSIS
I. Standard of Review
The trial court dismissed the Lees' breach of contract claim against RSC on summary judgment. This court reviews a grant of summary judgment de novo, applying the same standard as the trial court. Shields v. Morgan Fin. Inc., 130 Wn. App. 750, 755, 125 P.3d 164 (2005) review denied 157 Wn.2d 1025 (2006). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show no issues of material fact exist and that the moving party is entitled to judgment as a matter of law. CR 56(c). "A material fact is one upon which the outcome of the litigation depends, in whole or in part." Hisle v. Todd Pac. Shipyards, 151 Wn.2d 853, 861, 93 P.3d 108 (2004). To determine whether summary judgment is appropriate, the court must construe all facts and reasonable inferences in favor of the nonmoving party. Wood v. Seattle, 57 Wn.2d 469, 473, 358 P.2d 140 (1960).
However, "[a]fter the moving party has submitted adequate affidavits, the nonmoving party must set forth specific facts rebutting the moving party's contentions and disclosing the existence of issues of material fact." Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 377, 972 P.2d 475 (1999) (emphasis added) (citing Young v. Key Pharm. Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)). The non-moving party may not rely on speculation or argumentative assertions that unresolved factual issues remain. Id. (citing Vacova Co. v. Farrell, 62 Wn. App. 386, 395, 814 P.2d 255 (1991). A court weighing a summary judgment motion places "'the emphasis . . . upon facts' and regards a fact as 'an event, an occurrence or something that exists in reality.'" Michak v. Transnation Title Insurance Co., 148 Wn.2d 788, 795, 64 P.3d 22 (2003) (quoting Grimwood v. Univ. Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988)). "The motion should be granted only if, from all the evidence, reasonable [persons] could reach but one conclusion." Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974). As such, all inferences are construed in the Lees' favor, but they must set forth specific facts to show that RSC's motion should not have been granted because, based on a preponderance of the evidence, reasonable people could reach a different conclusion.
II. RSC Did Not Breach the PSA By Requiring Landlord's Consent to Close
The Lees assign error to the trial court's order granting summary judgment to RSC and to the trial court's denial of the Lees' motion for reconsideration. They do not assign error to the dismissal of their claim against Shane. The central issue here is whether RSC breached the PSA. At summary judgment the trial court viewed the facts in the light most favorable to the Lees, and determined that RSC did not breach the PSA. The trial court reiterated this conclusion when it denied the Lees' motion for reconsideration, noting that it made no findings as to the legal effect of the assignment:
In their response to RSC's motion on summary judgment, the Lees recognized that
[t]he Court has ruled that Mr. Shane, as Lessor, is not responsible as a matter of law for the failure of the sale. His argument was that his consent was not required, and therefore, his refusal to consent was not the legal cause of his failure to close. . . . the ruling on that Motion is now the law of the case, and establishes that Mr. Shane, as Lessor, is not responsible for the failure of the transaction.
To clarify, in ruling on the motion for summary judgment, the court did not make any findings of fact or presumptions concerning the parties' intent. Likewise, the court found it unnecessary to determine whether the Assignment, which was never signed by defendants Shane/Ra[m]ac, and which the plaintiffs maintained was conditionally tendered, should be given "legal effect," as argued by plaintiffs in their motion for reconsideration. The court reached its decision on the summary judgment motion by considering the undisputed facts and reasonable inferences from them in the light most favorable to the plaintiffs (the nonmoving party), and concluded that defendants nevertheless were entitled to judgment as a matter of law.
Nonetheless, in this appeal, the Lees argue that because the assignment and assumption of land lease was not signed by Shane, it carried no legal effect and was simply a failed attempt to condition the transaction on releasing RSC from liability. They believe that, because Shane was also a partner in RSC, the condition of his consent was a backhanded way to eliminate the consent-free assignment option in the original ground lease. The Lees maintain that by requiring Shane's consent to the assignment, RSC avoided the possibility of remaining on the ground lease as guarantors. This condition, argues the Lees, was a breach of the original PSA. In contrast, RSC maintains that because it fully executed every document required by the escrow instructions, there was no breach of contract, and that the failure to close was entirely the fault of Mr. Lee's last-minute decision to renegotiate the lease. Further, RSC argues that because the Lees had already signed the assignment, they cannot now repudiate its terms and argue that it has no legal effect.
Any alleged breach would have occurred one of two ways: (1) RSC's inclusion of the requirement for Shane's signature in the draft assignment and assumption of land lease sent on August 11 by RSC to Kennedy (and thereby, the Lees), or (2) the failure to close on August 17 in the absence of Shane's signature.
There is no dispute that Kennedy, as the Lees' broker, acted as their agent. Accordingly, representations and statements made by Kennedy were made with the authority and consent of the Lees. The existence of "actual and apparent authority [is] depend[ent] upon objective manifestations" of the principal. "With actual authority, the principal's objective manifestations are made to the agent; with apparent authority, they are made to a third person." Smith v. Hansen, Hansen Johnson, Inc., 63 Wn. App. 355, 363, 818 P.2d 1127 (1991).
We first determine whether the breach occurred by RSC's drafting of the assignment and assumption of land lease. One party may not unilaterally modify a contract. Flower v. T.R.A. Indus., Inc., 127 Wn. App. 13, 27-28, 111 P.3d 1192 (2005) review denied 156 Wn.2d 1030 (2006) (citing Jones v. Best, 134 Wn.2d 232, 240, 950 P.2d 1 (1998)). RSC was not entitled to unilaterally impose a new term. To the extent any new term conflicted with the PSA, it was ineffective. However, the assignment and assumption of land lease did not purport to change the terms in the original PSA, which allowed assignment with or without Shane's consent. Had RSC refused to close the deal by claiming that the option to proceed without the landlord's consent was no longer available, this would have been a breach. Had RSC refused to close the deal based on the lack of the landlord's consent, this also would have been a breach. Neither occurred. The PSA provided that Lee could negotiate directly with Shane to modify the lease. As contemplated by the original ground lease, RSC could be released from the original ground lease by consent of the landlord. It is reasonable for RSC to expect that it would be released from any liability under the original ground lease, because the Lees and Shane were negotiating amendments to the existing lease. This was not inconsistent with the PSA or the parties actual dealings. Tendering this document to the Lees was not a breach of the PSA.
The Lees could have objected to the requirement of Shane's signature in the draft assignment and assumption of land lease. However, they did not object, despite having five days to do so. They made requests for changes in the "first draft of the lease amendment" during that period, but not to amend the assignment and assumption of land lease. Rather, their agent approved the document to be sent to escrow and the Lees signed the assignment and assumption of land lease with the requirement of Shane's signature. "It is the general rule . . . that a party to a contract . . . which he has [voluntarily] affixed his signature will not be permitted to urge that he did not read it[, or] . . . was ignorant of its contents." Perry v. Cont'l Ins. Co., 178 Wash. 24, 28, 33 P.2d 661 (1934). "One cannot, in the absence of fraud, deceit or coercion be heard to repudiate his own signature voluntarily and knowingly fixed to an instrument whose contents he was in law bound to understand. . . . The whole panoply of contract law rests on the principle that one is bound by the contract which he voluntarily and knowingly signs." National Bank of Washington v. Equity Investors, 81 Wn.2d 886, 912-913, 506 P.2d 20 (1973). "[A] party who signs an instrument manifests assent to it and may not later complain about not reading or not understanding." Michak, 148 Wn.2d at 799.
We next determine whether RSC breached the PSA on August 17 when the transaction did not close in the absence of Shane's signature. The Lees and Kennedy spent most of that day attempting to obtain Shane's signature. After several phone calls, Kennedy emailed Shane at 11:45 am asking him to "contact your attorney or seek the advice of another attorney relative to your approval of the assignment to the original ground lease on the Silver Cloud. As we have discussed, the 1031 Exchange must be completed today and requires your approval. . . . Time is of the essence." (emphasis added). Shane replied with the following at 12:08 pm:
As you know on Monday you informed me that the purchase and sale was terminated. Yesterday, you informed me that you would like to make one last effort to keep it together. I co-operated with you and you indicated the documents prepared by my attorney were acceptable to the buyers. This morning at around 8:30 am I received a voice mail informing me that the buyers were not accepting the documents. At around 9:30 [a]m I was informed by Mr. Lee that he was signing different documents. I have asked for a copy of what the buyers would like me to sign and I have not received them . . . My attorney indicated yesterday to you that she (Shannon) was not available until after noon at the earliest. I am willing to do what ever I can to expedite things, but you can not expect me to blindly sign documents with out proper review. If you need to close by a certain time I need to have adequate time to allow my attorney to review.
Kennedy replied to Shane at 12:24 pm, requesting that he "sign the assignment of the original lease" and "forget the amendments to the lease" until Shane, his attorney, and the Lees could "work out a few details." In his declaration, Mr. Lee stated that he knew that at "that late date we did not have time for another round of negotiations" with Shane regarding the lease. Instead of losing the benefits of the § 1031 exchange, Mr. Lee said that they decided to take the lease "as is," which they considered "a very significant concession on our part." He also testified that when he signed the assignment and assumption of land lease as prepared by the RSC attorneys, he understood his signature to be binding only if Shane also signed. Lee testified that he believed that without Shane's signature, the transaction could still close without Shane's consent, in accordance with the consent-free option in the original ground lease. Whatever their subjective understandings, the actions of the Lees and Kennedy were not consistent with his assertion. Under the terms of the original lease, RSC could assign the lease without Shane's consent. Kennedy nonetheless emailed Shane seeking his consent to assign the original lease, when he should have instead contacted RSC.
Under the terms of the escrow instructions agreed to by the parties, changes could be made to the documents held in escrow, but only by a written agreement of the parties to the closing. Even though the Lees had already signed the assignment and assumption of land lease, RSC and the Lees could have agreed to remove Shane's signature line from the document by jointly instructing the escrow agent in writing. However, the Lees do not point to any evidence that they contacted anyone on behalf of RSC to seek this change or to assert the right to go forward under the terms of the original ground lease. In fact, evidence in affidavits shows otherwise. In his declaration, Korbein testified that the escrow agent indicated to him that the Lees and Kennedy were "franticly" [sic] trying to get Shane's signature. However, Korbein testified that the neither the Lees nor Kennedy tried to contact him about the lack of Shane's signature or make an attempt to close the deal under the original terms of the PSA. Weymouth, who was out of town on August 17, but available by phone, also testified that neither the Lees nor Korbien attempted to contact him. This evidence does not show that Lee sought RSC's agreement to modify the escrow instructions let alone that RSC refused to cooperate in such modification. Accordingly, because RSC cannot be held responsible for the Lees failure to take the correct action, we cannot conclude that RSC breached the PSA on August 17.
It is uncontested that RSC executed all of the documents requested by the escrow agent. The Lees did not provide any evidence that RSC failed to do what it promised at closing. While the Lees contend that the requirement of Shane's consent was RSC's indirect means to kill the transaction, they do not point to a single act or document that supports this theory. The Lees had opportunities to modify the assumption and assignment of land lease to eliminate the consent requirement before approving the document for escrow and again after signing it, but did not avail themselves. While the Lees make speculative and argumentative assertions that unresolved factual issues remain, they do not direct this court to specific evidence rebutting the facts that RSC fully performed its part of the bargain. Even when the facts are viewed in the light most favorable to the Lees, RSC did not breach the purchase and sale agreement. We conclude that the trial court did not err when it ordered summary judgment in favor of RSC, and denied Lee's motion for reconsideration.
III. Modification of the PSA by the First Amendment
In their reply brief, the Lees argue that "[t]here [w]as [a] [g]enuine [i]ssue [o]f [material] [f]act [as to] [w]hether Shane [m]odified [t]he PSA [t]o [m]ake [h]is [e]xecution [o]f [t]he [a]ssignment [a] [t]erm [o]r [c]ondition [t]o [t]he [c]losing." They point to his notation signature on the first amendment to the PSA, arguing that because he added that notation after the Lees had already signed the first amendment, mutual modification did not occur. The preceding analysis demonstrated the Lees agreed to Shane's signature evidencing consent when they provided escrow instructions, approved the documents submitted to escrow, and subsequently signed the assignment and assumption of ground lease. Neither the analysis nor the outcome was predicated on the PSA having been amended by virtue of Shane having placed an annotation and signature on the first amendment to the PSA. This issue is not material to the outcome of the case. Further, we need not address arguments raised for the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) ("An issue raised and argued for the first time in a reply brief is too late to warrant consideration.") Accordingly, we decline review of this argument.
IV. Attorney Fees
Finally, under the PSA and RCW 4.84.330, Weymouth/RSC received attorney fees and costs as the prevailing party in the trial court. Weymouth/RSC also requests attorney fees and costs on appeal under RAP 18.1. We conclude that the trial court properly awarded attorney fees and costs to Weymouth/RSC as the prevailing party below, and also award attorney fees and costs on appeal.
"If Buyer or Seller institutes suit concerning this Agreement, the prevailing party is entitled to reasonable attorneys' fees and expenses. In the event of trial, the amount of attorneys' fees shall be fixed by the court."
We affirm the trial court's order for summary judgment in favor of Weymouth/RSC.