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    2015-10-02 Order Granting Defendants Motion To Dismiss Under Civil Rule 12 (B)

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    GrowlerJoe
    "Plaintiffs purchased homes on Whidbey Island in Island County. In connection with that purchase they were given a disclosure related to noise abatement restrictions for new construction and alterations to existing structures. But no one, neither the seller nor the broker, provided a second, required disclosure that warned of severe jet noise from US Navy airplanes in the area. When Plaintiffs discovered that they had not been given the appropriate disclosure, robbing them of the ability to make an informed decision about whether to purchase and how much to pay for property in a severely noise impacted area, they brought suit under Washington's Consumer Protection Act, RCW ch. 19.86 et seq. ("CPA") against the brokers that listed their property. Defendants now seek to escape liability for failing to provide this required disclosure."

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    2015-10-02 Order Granting Defendants Motion To Dismiss Under Civil Rule 12 (B)

    Uploaded by

    GrowlerJoe
    120 views3 pages
    "Plaintiffs purchased homes on Whidbey Island in Island County. In connection with that purchase they were given a disclosure related to noise abatement restrictions for new construction and alterations to existing structures. But no one, neither the seller nor the broker, provided a second, required disclosure that warned of severe jet noise from US Navy airplanes in the area. When Plaintiffs discovered that they had not been given the appropriate disclosure, robbing them of the ability to make an informed decision about whether to purchase and how much to pay for property in a severely noise impacted area, they brought suit under Washington's Consumer Protection Act, RCW ch. 19.86 et seq. ("CPA") against the brokers that listed their property. Defendants now seek to escape liability for failing to provide this required disclosure."

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    2015-10-02 ORDER GRANTING DEFENDANTS MOTION TO DISMISS UNDER CIVIL RULE 12(B)(6)

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    "Plaintiffs purchased homes on Whidbey Island in Island County. In connection with that purchase they were given a disclosure related to noise abatement restrictions for new construction and alterations to existing structures. But no one, neither the seller nor the broker, provided a second, required disclosure that warned of severe jet noise from US Navy airplanes in the area. When Plaintiffs discovered that they had not been given the appropriate disclosure, robbing them of the ability to make an informed decision about whether to purchase and how much to pay for property in a severely noise impacted area, they brought suit under Washington's Consumer Protection Act, RCW ch. 19.86 et seq. ("CPA") against the brokers that listed their property. Defendants now seek to escape liability for failing to provide this required disclosure."

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    120 views3 pages

    2015-10-02 Order Granting Defendants Motion To Dismiss Under Civil Rule 12 (B)

    Uploaded by

    GrowlerJoe
    "Plaintiffs purchased homes on Whidbey Island in Island County. In connection with that purchase they were given a disclosure related to noise abatement restrictions for new construction and alterations to existing structures. But no one, neither the seller nor the broker, provided a second, required disclosure that warned of severe jet noise from US Navy airplanes in the area. When Plaintiffs discovered that they had not been given the appropriate disclosure, robbing them of the ability to make an informed decision about whether to purchase and how much to pay for property in a severely noise impacted area, they brought suit under Washington's Consumer Protection Act, RCW ch. 19.86 et seq. ("CPA") against the brokers that listed their property. Defendants now seek to escape liability for failing to provide this required disclosure."

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    The Honorable Dave Needy

    Skagit County Superior Court


    Hearing Date: August 21, 2015
    Hearing Time: 1:30 p.m.

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    IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON


    IN AND FOR THE COUNTY OF ISLAND

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    JONATHAN DEEGAN and ALICE


    O'GRADY, on behalf of themselves and other
    similarly situated,
    Plaintiffs,

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    V.

    (CLERK'S ACTION REQUIRED)


    NO. 14-2-00705-6
    [P.R8PO~ ORDER GRANTING
    DEFENDANTS' MOTION TO DISMISS
    UNDER CIVIL RULE 12(B)(6)

    WINDERMERE REAL ESTATE/CENTERISLE, INC., a Washington corporation; and


    ACORN PROPERTIES, INC. dba RE/MAX
    ACORN PROPERTIES, INC., a Washington
    corporation,

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    Defendants.

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    THIS MATTER having come regularly for hearing on August 21, 2015 before the

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    Court upon Defendant Windermere Real Estate/Center-Isle, Inc.'s Motion to Dismiss Under

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    Civil Rule 12(b)(6). Plaintiffs appeared through Michael D. Daudt of Daudt Law, PLLC and

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    Defendants through Christopher I. Brain of Tousley Brain Stephens PLLC. The Court heard the

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    oral argument of counsel and reviewed the following pleadings:

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    1.

    Defendants Motion to Dismiss Under Civil Rule 12(b)(6);

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    2.

    Declaration of Jason Dennett with attached exhibits;

    [PROPOSED] ORDER GRANTING DEFENDANTS'


    MOTION TO DISMISS UNDER CIVIL RULE 12(B)(6) - 1

    ( ,a PY

    TOUSLEY BRAIN STEPHENS PLLC


    1700 Seventh Avenue, Suite 2200
    Seattle, Washington 98101
    TEL 206.682.5600 FAX 206.682.2992

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    3.

    Plaintiffs' Opposition to Motion to Dismiss Under Rule i2(b)(6);

    4.

    Defendants' Reply in Support of Motion to Dismiss Under Rule 12(b)(6);

    Based on the foregoing, the Court makes the following findings:


    1.

    The disclosure statements provided by Defendants on Form 22W did not

    provide the Code Section 9.44.050 disclosure statement required by the county in 1992.

    2.

    The Fotm 22W that was provided to plaintiffs was a generic airport notice

    indicating a significant noise level as a result of airport operations. However, it did disclose
    that (i) the subject property was within an Airport Noise Zone 2 or 3 impacted area; (ii) persons
    on the premises may be exposed to significant noise level as a result of airport operations, and
    (iii) before purchasing the property, the buyer should consult the Island County Noise Level
    Redactions Ordinance.
    3.

    Plaintiffs, by receipt of Form 22W, were put on notice of a "defect" in the form

    of possible extreme noise levels that could be present at the location of the subject property.

    4.

    This noise "defect" was known by the entire community and it would not be

    "fruitless" for plaintiffs to have done reasonable investigation including, for example, knocking
    on doors of nearby residents or asking around to obtain further knowledge about the frequency
    and loudness of the noise.

    5.

    Plaintiff Jonathan Deegan purchased his home in 2006. He reasonably should

    have become awate of the frequency and loudness of the airport operations no later than a few
    months after he took ownership.
    Based on the foregoing findings, the Court concludes that:
    1.

    Based on Douglas v. Visser, 173 Wn. App. 823 (2013), the plaintiffs had a legal

    duty to investigate the extent of the significant noise level disclosed in the Form 22W. Once
    plaintiffs have been put on notice of the potential defect, no valid Consumer Protection Act
    claim can be based on that defect not being disclosed.
    2.

    The statute of limitations as to Plaintiff Deegan has run.

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    [PROPOSED] ORDER GRANTING DEFENDANTS'
    MOTION TO DISMISS UNDER CIVIL RULE 12(B)(6) - 2

    TOUSLEY BRAIN STEPHENS PLLC


    1700 Seventh Avenue, Suite 2200
    Seattle, W ashington 981 01
    TEL 206.682.5600 FAA 206.682.2992

    The Court now ORDERS as follows:


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    A.

    Defendants' motion based on CR12(b)(6) is granted, and

    B.

    Defendants' motion to dismiss the claim of Plaintiff Deegan based upon the

    lapse of the statute oflimitations is granted.

    Dated

    \O - ~

    ,2015

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    Presented by:
    TOUSLEY BRAIN STEPHENS PLLC

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    Dt:u.N,,it V)oA #3oc~t

    By: '-.h:s<>VL
    Christopher I. Brain, WSBA #5054
    Email: [email protected]
    1700 Seventh Avenue, Suite 2200
    Seattle, WA 98101
    Tel: (206) 682-5600/Fax: (206) 682-2992
    Attorneys for Defendants
    Copy Received
    Notice o tesentation Waived

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    -~-~------------

    B:

    . hael D. Daudt, WSBA #25690


    Email: mik @daudtlaw.com
    200 W. Thomas Street, Suite 420
    Seattle WA 98119
    Tel: (206) 445-7733
    Fax: (206) 445-7399
    Attorneys for Plaintiffs

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    [PROPOSED] ORDER GRANTJNG DEFENDANTS'
    MOTION TO DISMISS UNDER CIVIL RULE 12(B)(6) - 3

    TOUSLEY BRAIN STEPHENS PLLC


    1700 Sevenlh Avenue, Suite 2200
    Saallla, Washlnglon 98101
    TEL. 206.682.5600 FAX 206.682.2992

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