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);

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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: cbrain@tousley.com
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