"We are committed to: The highest ethical standards. Uncompromising honesty and integrity." —The Windermere Mission Statement "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." —Windermere CEO Geoff Wood's Public Affirmation

 

MORE WINDERMEREWATCH TOP REPORTS

 

BUYERS BEWARE: DON'T PURCHASE PROPERTIES BUILT BY BENNETT HOMES OF BELLEVUE

WINDERMERE SERVICES COMPANY v. MAXWELL UPDATE: VOLUNTARY DISMISSAL OF CLAIMS FILED

CW TITLE REVIEWS: "I'M STILL WAITING TO CLOSE ON MY PROPERTY BECAUSE OF HER LIES."

IS WINDERMERE SCA REDMOND THE MOST CORRUPT AND UNETHICAL WINDERMERE FRANCHISE OF ALL?

PUGET SOUND BUSINESS JOURNAL PROMOTES WINDERMERE AS ONE OF WASHINGTON'S MOST RESPECTED BRANDS

WINDERMERE-DEMCO LAW FIRM'S LYING LAWYER MATTHEW F. DAVIS REVIEW

 

WINDERMERE SERVICES LITIGATION with DISGRUNTLED FORMER FRANCHISEES

A MILLION-DOLLAR JUDGMENT: PAUL STICKNEY WINDERMERE REAL ESTATE SCA, REDMOND, REVIEW AND REPORT

WINDERMERE PROPERTY MANAGEMENT COMPLAINTS and REVIEWS

WINDERMERE PROPERTY MANAGEMENT RIPOFF IN CENTRAL OREGON: "They keep your deposit...

DEFAULT JUDGMENT OF $3,005.00 AGAINST WINDERMERE PROPERTY MANAGEMENT/JMW

 

YOUR RIGHT TO KNOW: THE SUPERSEDEAS APPEAL BOND—and PAUL STICKNEY WINDERMERE SCA's CURRENT LISTINGS

INVESTIGATION BY FBI & U.S. ATTORNEY: WINDERMERE COACHELLA VALLEY, BENNION & DEVILLE FINE HOMES

REVIEW: THE LAW OFFICE OF PAUL S. DRAYNA, WASHINGTON'S MOST DIUNETHICAL LAWYER

WHY THE PUBLIC IS REFUSING TO BUY TICKETS TO SEATTLE PRO MUSICA'S CELTIC CHRISTMAS CONCERTS

 

 

National Real Estate Fraud Center Windermere Real Estate Case History:

 

SOUND BUILT HOMES INC v. WINDERMERE REAL ESTATE SOUTH, INC.

"Accordingly, Sound Built is now entitled to a judgment against Windermere for one half of the amount that Sound Built paid to discharge Mastro's judgment..."

 

(Above L to R) 1: Corporate liar and bully John W. Jacobi, Windermere founder and chairman who promotes "We are committed to... The highest ethical standards. Uncompromising honesty and integrity," but in reality—despite being presented hard evidence of dishonest, unethical Windermere misconduct—forces damaged and defrauded Windermere victims through years of ruinous, bankrupting litigation. When victims do indeed speak out, Jacobi falsely sues them for trade libel and defamation, tries to coerce the defendant into a "dark clause" settlement agreement through fear and intimidation, continues to prosecute the bogus action for years at enormous cost to the parties, then runs away and voluntarily dismisses his own lawsuit under Civil Rule 41, just prior to trial when the honest, innocent victim persists in refusing to sign away their speech rights. 2: Windermere general counsel, Paul S. Drayna, who spearheads illegal efforts to strip damaged Windermere clients of their speech rights. 3: Attorney John Demco of Windermere's Demco Law Firm, which prosecutes Windermere's anti-speech cases and unabashedly defends the most outrageous Windermere Realtor misconduct—no matter what it is. Demco is also a multi-franchise Windermere owner who defended his one-time mother-and-daughter Windermere Freeland/Whidbey agents, Samantha Saul and Linda Gabelein, about whom the court stated "...the Sauls and Gabeleins unduly influenced and exploited Emma." Click here for that report. 4: Windermere-Demco Law Firm's lying lawyer, Matthew F. Davis—click here for review of Mr. Davis—who lies to courts and legal opponents alike in an all-out effort to win at any cost.

 

SOUND BUILT HOMES INC v. WINDERMERE REAL ESTATE SOUTH, INC.

 

SOUND BUILT HOMES, INC., Respondent, v. WINDERMERE REAL ESTATE/SOUTH, INC., Appellant.

 

No. 28106-6-II.

 

July 15, 2003

 

Harold T. Hartinger,Vandeberg Johnson & Bandara, Tacoma, WA, for Respondent. Matthew F. Davis, Attorney at Law, Seattle, WA, for Appellant.

 

Sound Built Homes, Inc. (Sound Built), and Windermere Real Estate/South, Inc. (Windermere), were contractual co-obligors against whom Michael Mastro obtained a judgment. Sound Built paid Mastro's judgment, then sued Windermere for the entire amount paid. The trial court granted the entire amount, prompting Windermere to bring this appeal. Because Sound Built and Windermere were contractual co-obligors who had not agreed otherwise, we hold that Sound Built is entitled to recover half, but not all, of what it paid on Mastro's judgment.

 

In 1993, Michael Mastro owned certain real property. John Mastrandrea was one of Mastro's employees. Marvin Pinkus was an associate broker with Windermere. Mastro authorized Mastrandrea to act for him on some but not all matters related to that property. Mastro did not authorize Mastrandrea to sign an earnest money agreement or amendments to such an agreement. Mastrandrea informed Pinkus that Mastro's property was for sale, and Pinkus procured Sound Built as a possible buyer.

 

On August 4, 1993, Mastro signed an earnest money agreement whereby he was to sell the property and Sound Built was to buy it. The agreement was to lapse unless certain contingencies were removed within 30 days. The agreement obligated Mastro to pay Windermere's commission and provided that if a dispute later arose, the prevailing party could recover its reasonable attorney fees as follows:

 

14. Default or Failure to Perform? In the event of any dispute in connection with the terms and conditions of this Agreement, ? or if suit shall be brought, the prevailing party shall be entitled to recover reasonable court costs and attorney's fees.[1]

 

On September 3, 1993, the agreement lapsed because the contingencies had not been removed. Pinkus wanted to revive it, so he prepared a written extension agreement. After Sound Built signed the extension agreement, Pinkus asked Mastrandrea to obtain Mastro's signature. A short time later, the agreement was returned with what appeared to be Mastro's signature on it. In reality, however, Mastrandrea had forged Mastro's signature, and Mastro still thought the earnest money agreement had lapsed.

 

In October 1993, Sound Built sold its “interest” in the property to Robinson Homes. In July 1994, Mastro sold his interest to Judi Homes.

 

In the early fall of 1994, the parties learned that Mastro's signature had been forged. In January 1995, Mastro closed his deal with Judi Homes, over Pinkus's and Robinson Homes's objections.

 

Meanwhile, in October 1994, Robinson sued Mastro, Mastrandrea, Sound Built, and Windermere in the King County Superior Court. Mastrandrea defaulted. Mastro defended on the ground that the 1993 earnest money agreement had lapsed 30 days after its formation. Except for attorney fees, Mastro did not make any counterclaims or crossclaims. Windermere counter-claimed against Mastro for a commission. Sound Built cross-claimed against Windermere for reimbursement of whatever amount it might be required to pay Mastro, alleging “equitable indemnity” and negligent misrepresentation.

 

In September 1996, after a bench trial, the King County Superior Court ruled that Mastro had not breached any contract and that all claims against him should be dismissed. The court ruled that Sound Built had failed to show that it was entitled to equitable indemnity, reasoning in part:

 

73. Sound Built became involved in the subject litigation based, in part at least, on its own actions. As a result, Sound Built's equitable indemnity claim against Windermere cannot lie.[2]

 

The court also ruled that Sound Built had failed to prove negligent misrepresentation, reasoning in part:

 

74. As to Sound Built's claim for indemnity against Windermere based on negligent misrepresentation, Sound Built shares responsibility with Windermere for any acts giving rise to potential liability to [Robinson]. Sound Built further knew, or should have known, that there were serious questions about Mastandrea's authority.[3]

 

The court concluded that Mastro “is entitled to judgment against Windermere, Sound Built and Robinson, jointly and severally, for reasonable attorney fees and costs.” 4 In November and December 1996, the court granted judgment against Robinson, Sound Built, and Windermere for Mastro's reasonable attorney fees in the amount of $50,000, plus costs of $321.

 

Sound Built appealed to Division One. It argued-for the first time on appeal-that Windermere had impliedly warranted that Windermere had authority to act for Mastro. Sound Built also argued, as it had in the trial court, that Windermere had negligently misrepresented the genuineness of Mastro's signature on the extension agreement.

 

Windermere cross-appealed to Division One. It argued, as it had in the trial court, that it should not be required to pay Mastro's reasonable attorney fees.

 

Division One declined to consider the implied warranty theory that Sound Built was raising on appeal for the first time. 5 Division One affirmed in all other respects, 6 the Supreme Court denied review, 7 and the King County judgment became final.

 

Even before the appeals were finished, Mastro demanded that Sound Built satisfy his judgment for attorney fees and costs. Sound Built acceded in December 1999, paying $69,280.71 ($50,000 in principal, $321 in costs, and the remainder in judgment interest). In return, Mastro assigned his judgment to Sound Built.

 

On February 8, 2000, Sound Built sued Windermere in the Pierce County Superior Court. It alleged that Windermere should indemnify it in the amount of $69,280.71 plus ongoing interest, as well as its “costs and disbursements in this action[.]” 8 Windermere responded in part by asserting res judicata and collateral estoppel.

 

In August 2001, the Pierce County court held a bench trial on stipulated facts. It ruled that Sound Built's action was “not barred by collateral estoppel, res judicata, or other rules relating to ‘claim splitting.’ ” 9 It also ruled that “Windermere breached its implied warranty of agency authority when it represented to [Sound Built] that a forged document (Exhibit P) revived an expired real estate purchase agreement (Exhibit N).” 10 It concluded that “Sound Built is entitled to indemnity on an implied contract under agency law for Windermere's actions purportedly taken as agent for Mr. Mastro.” 11

 

On October 26, 2001, the Pierce County court entered a judgment for Sound Built and against Windermere in the amount of $117,600 (Mastro's judgment for attorney fees, interest on that judgment to date, and $33,797 in reasonable attorney fees and costs incurred by Sound Built in the Pierce County action). Windermere then filed this appeal.

 

Sound Built claims complete indemnity from Windermere. Windermere responds that Sound Built is entitled to contribution, but not to complete indemnity. We address indemnity first and contribution second.

 

I.

 

Sound Built alleges that Windermere must indemnify it for the entire amount of the King County judgment, plus interest, costs, and fees. Sound Built claims that Windermere impliedly warranted its authority to act for Mastro, that Windermere breached its warranty, and that the breach caused damage to Sound Built. Windermere responds that the final King County judgment precludes Sound Built from now bringing such a claim.

 

A.

 

Preliminarily, we examine the nature of Sound Built's claim. In general, an agent who forms a contract in the name of his or her principal impliedly “warrants” to the third party that he or she has authority to contract in the principal's name.12 This will not be true, however, if the agent “sufficiently manifests” to the contrary.13 The agent who makes such a warranty will be liable to the third party if it later turns out, with or without fault on the agent's part, that the agent did have the principal's authority to form the contract. The agent who does not make such a warranty will be liable to the third party only for negligence or deceit (i.e., for a misrepresentation that is negligent or “fraudulent,” but not for a misrepresentation that is “innocent” in the sense of having been made without fault).14

 

A real estate agent is usually the agent of the seller.15 When that is the case, unless otherwise agreed, a real estate agent has authority to procure a willing and able buyer, but not authority to sell the land.16 Logically then, the agent impliedly warrants his or her authority to find a buyer, but not, without more, his or her authority to sell the land.

 

In this case, Sound Built might be claiming that Windermere breached an implied warranty of authority to find a buyer. If it is, however, its claim fails. As the movant in this summary judgment proceeding, Sound Built had “the initial burden of showing the absence of an issue of material fact” 17 -or, in more specific terms, that Windermere lacked Mastro's authority to find a buyer. Although the record shows that Mastrandrea forged the extension agreement, it does not show whether Mastro and Windermere had a valid listing agreement when, in September 1993, Windermere was brokering the extension agreement. Thus, the record does not show that Windermere lacked Mastro's authority to find a willing and able buyer, or that Windermere breached an implied warranty of authority to find a willing and able buyer.

 

Sound Built cannot reasonably be claiming that Windermere made or breached an implied warranty of authority to sell the land. As a real estate developer, Sound Built clearly knew that Windermere had authority to find a willing and able buyer, but not authority to sell the land.

 

What Sound Built seems actually to be claiming is that Windermere impliedly warranted the genuineness of Mastro's signature on the extension agreement. The question thus raised is whether a real estate agent impliedly warrants, regardless of fault, the genuineness of his or her principal's signature on an earnest money agreement. The Washington courts have not addressed this question, although they have addressed a question that is arguably related.18 Neither party has briefed or argued the question, despite its potential difficulty.19 If we needed to answer the question here, we would order additional briefing. We choose, however, to resolve the case on other grounds.

 

B.

 

Windermere asserts that the final King County judgment precludes Sound Built from bringing its claim for indemnity. Windermere reasons that Sound Built may not re-prosecute a claim that it previously prosecuted or should have prosecuted to finality. Sound Built does not deny that it prosecuted a claim to finality in King County, but it does deny that it is now reprosecuting the same claim. It urges that its King County claim was for “equitable indemnity” and negligent misrepresentation, while its Pierce County claim is for “breach of warranty.”

 

In Kelly-Hansen v. Kelly-Hansen, 20 we observed that claim preclusion, often called “res judicata,” encompasses the idea that when the parties to two successive proceedings are the same, and the prior proceeding culminated in a final judgment, a matter may not be relitigated, or even litigated for the first time, if it could have been raised, and in the exercise of reasonable diligence should have been raised, in the prior proceeding. As already noted, the Supreme Court has said that “res judicata acts to prevent relitigation of claims that were or should have been decided among the parties in an earlier proceeding.” The Court has also said, on numerous occasions, that res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at that time.

 

And the Court has further said:

 

This court from early years has dismissed a subsequent action on the basis that the relief sought could have and should have been determined in a prior action. The theory on which dismissal is granted is variously referred to as res judicata or splitting causes of action.

 

Although many tests have been suggested for determining whether a matter should have been litigated in a prior proceeding, there is no simple or all-inclusive test. Instead, it is necessary to consider a variety of factors, including, according to the Supreme Court, whether the present and prior proceedings arise out of the same facts, whether they involve substantially the same evidence, and whether rights or interests established in the first proceeding would be destroyed or impaired by completing the second proceeding? [I]t has been held that a matter should have been raised and decided earlier if it is merely an alternate theory of recovery, or an alternate remedy.[21]

 

The Restatement of Judgments (Second) puts these principles into national and historical perspective. Section 24(1) suggests that a “claim” should include “all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” 22 Section 24(2) suggests that the scope of a “transaction” should be “determined pragmatically,” essentially by examining the relevant facts and circumstances. 23 The accompanying comments explain that Section 24 takes this “transactional view of [a] claim” 24 for the following reasons:

 

a. Rationale of a transactional view of claim ? [Section 24] responds to modern procedural ideas which have found expression in the Federal Rules of Civil Procedure and other procedural
systems.

 

“Claim,” in the context of res judicata, has never been broader than the transaction to which it related. But in the days when civil procedure still bore the imprint of the forms of action and the division between law and equity, the courts were prone to associate claim with a single theory of recovery, so that, with respect to one transaction, a plaintiff might have as many claims as there were theories of the substantive law upon which he could seek relief against the defendant. Thus, defeated in an action based on one theory, the plaintiff might be able to maintain another action based on a different theory, even though both actions were grounded upon the defendant's identical act or connected acts forming a single life-situation. In those earlier days there was also some adherence to a view that associated claim with the assertion of a single primary right as accorded by the substantive law, so that, if it appeared that the defendant had invaded a number of primary rights conceived to be held by the plaintiff, the plaintiff had the same number of claims, even though they all sprang from a unitary occurrence. Still another view of claim looked to sameness of evidence; a second action was precluded where the evidence to support it was the same as that needed to support the first. Even so, claim was not coterminous with the transaction itself.

 

The present trend is to see claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split.

 

This definition of claim to engross the relevant transaction simplifies the application of the rules of merger and bar; it enhances the benefits deriving from those rules without causing undue hardship. Equating claim with transaction, however, is justified only when the parties have ample procedural means for fully developing the entire transaction in the one action going to the merits to which the plaintiff is ordinarily confined. A modern procedural system does furnish such means? The law of res judicata now reflects the expectation that parties who are given the capacity to present their “entire controversies” shall in fact do so.

 

b. Transaction: application of a pragmatic standard. The expression “transaction, or series of connected transactions,” is not capable of a mathematically precise definition; it invokes a pragmatic standard to be applied with attention to the facts of the cases. And underlying the standard is the need to strike a delicate balance between, on the one hand, the interests of the defendant and of the courts in bringing litigation to a close and, on the other, the interest of the plaintiff in the vindication of a just claim.

 

In general, the expression connotes a natural grouping or common nucleus of operative facts. Among the factors relevant to a determination whether the facts are so woven together as to constitute a single claim are their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes? [25]

 

The Washington Supreme Court has applied these principles for decades. Its cases include Schoeman v. New York Life Insurance Co., 26 Bill v. Gattavara, 27 Currier v. Perry, 28 Tacoma Mill Co. v. Northern Pacific Railway Co., 29 Sweeney v. Frank Waterhouse & Co., 30 and Sayward v. Thayer. 31

 

Since 1994 or 1995, Sound Built has been claiming that Windermere should provide reimbursement 32 for any amounts Sound Built had to pay to Mastro. In the King County action, its theories were “equitable indemnity” and negligent misrepresentation (i.e., that Windermere, with negligence, inaccurately represented that it had Mastro's authority to do some act 33). In this Pierce County action, its theory has been that Windermere breached an implied warranty of authority (i.e., that Windermere, with or without negligence or other fault, inaccurately represented its authority, with or without fault). It is apparent that all three theories were based on the same facts, the same evidence, and the same transaction. At bottom then, Sound Built's position is that a party can bring as many actions as he or she has substantive legal theories, even if all theories involve the same facts, the same evidence, and the same transaction.

 

Based on the foregoing authorities, we reject this position. Holding that the only difference between the King and Pierce County actions is the substantive legal theory on which Sound Built relied, we conclude that Sound Built is trying to re-litigate in Pierce County a claim that it already lost in King County; that Sound Built is precluded by law from doing that; and that Sound Built's claim for indemnity should be dismissed. 34

 

II.

 

The parties agree that if Sound Built is not entitled to indemnity, it is entitled to contribution. They dispute, however, whether contribution should be measured under RCW 4.22.040. We address (A) whether RCW 4.22. 040 applies, and (B) if not, what does.

 

A.

 

RCW 4.22.040(1) requires that “contribution among liable persons” be based on “the comparative fault of each[.]” It provides:

 

A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury, death or harm, whether or not judgment has been recovered against all or any of them? The basis for contribution among liable persons is the comparative fault of each such person. [35]

 

By its plain terms, this section applies when “the basis for contribution is the comparative fault” of each liable person. By negative but necessary implication, it does not apply when the basis of contribution is entirely contractual, for such basis exists irrespective of fault.

 

 

The King County court's 1996 judgment furnishes the basis for contribution here. In that judgment, the court did not make Windermere and Sound Built jointly liable for Mastro's attorney fees and costs because the court thought Windermere and Sound Built were at fault. Rather, the court made Windermere and Sound Built liable because it thought that they both had contracted to comply with the attorney fee clause in the 1993 earnest money agreement. Contribution here is contractually-based, not fault-based, and RCW 4.22.040 does not apply.

 

B.

 

According to the Washington Supreme Court, contribution between or among contractual coobligors “is based upon the equitable principles that, where several parties are equally liable for the same debt and one is compelled to pay the whole of it, he may have contribution against the others to obtain from them the payment of their respective shares.” 36 The one who seeks contribution “may recover only the excess which he has paid over his share.” 37 Insofar as the one who seeks contribution is entitled to recover, the party from whom contribution is sought must pay a share computed by dividing the number of solvent obligors into the relevant obligation.38 In general, these same rules apply to joint debtors on a judgment. 39

 

By virtue of the 1993 earnest money agreement and the King County court's final judgment, Windermere and Sound Built became contractual co-obligors for Mastro's reasonable attorney fees and costs. Sound Built was forced to pay the entire judgment, although Windermere should have paid half. Accordingly, Sound Built is now entitled to a judgment against Windermere for one half of the amount that Sound Built paid to discharge Mastro's judgment (i.e., for one half of the principal on Mastro's judgment, plus one half of the interest that Sound Built paid in order to discharge that judgment). 40 Sound Built's judgment against Windermere shall bear prejudgment interest from the date on which Sound Built discharged Mastro's judgment, for that is the date on which Sound Built's contribution claim came into being and was liquidated. 41 Neither Sound Built nor Windermere is entitled to reasonable attorney fees or costs in this Pierce County action, as neither has prevailed more than the other.

 

Reversed and remanded for entry of judgment as indicated herein.

 

FOOTNOTES

 

1. Exhibit (Ex.) N at 4.

 

2. Ex. A at 18.

 

3. Ex. A at 18-19.

 

4. Ex. B at 6, Conclusion of Law 5; Ex. B at 2, Finding of Fact 6.

 

5. Robinson Homes, Inc. v. Mastro, No. 39678-1-I, slip op. at 2, 90 Wash.App. 1054, 1998
WL 251994, *1 (Wash.Ct.App. May 18, 1998) (“We decline to review Sound Built's new
theory of recovery raised for the first time on appeal”).

 

6. Robinson Homes, No. 39678-1-I.

 

7. Robinson Homes, Inc. v. Mastro, 139 Wash.2d 1005, 989 P.2d 1138 (1999).

 

8. CP at 5.

 

9. CP at 120.

 

10. CP at 120.

 

11. CP at 120.

 

12. Restatement (Second) of Agency § 329 (1958) (“A person who purports to make a contract, conveyance or representation on behalf of another whom he has no power to bind, thereby becomes subject to liability upon an implied warranty of authority unless he has manifested that he does not make such warranty or the other party knows that the agent is not so authorized.”); Restatement § 329 cmt. a (“When an agent purports to make a contract ? the agent represents that he has power so to bind the principal”); see also Routh v. Wagner, 53 Wash.2d 347, 350, 333 P.2d 674 (1959) (“It is well settled that agent who exceeds his authority, so that his principal is not bound, will himself be liable for the damage occasioned to the other contracting party.”); Equipto Div. Aurora Equip. Co. v. Yarmouth, 83 Wash.App. 817, 823 n. 12, 924 P.2d 405 (1996) (an agent who “contract[s] with a third party impliedly, if not expressly, represents that he is in fact authorized by his principal to make the contract”) (citation omitted), reversed on other grounds, 134 Wash.2d 356, 950 P.2d 451 (1998); Dep't of Retirement Systems v. Kralman, 73 Wash.App. 25, 29, 867 P.2d 643 (1994) (“An agent who purports to make a representation on behalf of another, but has no power to bind, is personally liable”); Riverside Research Institute v. KMGA, Inc., 68 N.Y.2d 689, 506 N.Y.S.2d 302, 497 N.E.2d 669, 671 (1986) (“An agent implicitly warrants its own authority to act”); Barnes v. Southwestern Bell Telephone Co., 596 F.Supp. 1046, 1050 (W.D.Ark.1984) (an agent “impliedly represents that he has authority to act for [the principal]”) (citation omitted).

 

13. Restatement (Second) of Agency § 331 (1958) (“A person who purports to make a contract, conveyance or representation on behalf of a principal whom he has no power to bind thereby is not subject to liability ? if he sufficiently manifests that he does not warrant his authority and makes no tortious misrepresentation”.); Restatement § 331 cmt. b (“If the agent gives notice to the third person that the existence of the authority is not warranted, he is not liable”); see also A. Leschen & Sons Rope Co. v. Case Shingle & Lumber Co., 152 Wash. 37, 45, 276 P. 892, (1929) (third-party “had the right to assume authority upon the part of the agent unless [he] had notice of some limitation upon the authority of the agent”); Dep't of Retirement Systems v. Kralman, 73 Wash.App. at 29, 867 P.2d 643 (third party not entitled to rely on agent's representation of authority “when put on notice that a question exists as to the agent's authority”); Glendale Realty, Inc. v. Johnson, 6 Wash.App. 752, 756, 495 P.2d 1375 (1972) (same); Broughton v. Dona, 101 A.D.2d 897, 475 N.Y.S.2d 595, 596-97 (N.Y.App.Div.1984) (agent liable to third person only if “lack of authority was not manifested”); Duncan v. Peninger, 624 F.2d 486, 490 (4th Cir.1980) (agent not liable where third person was “chargeable with knowledge that [agent] had no authority”), cert. denied, 449 U.S. 1078, 101 S.Ct. 857, 66 L.Ed.2d 800 (1981); Yoakum v. Tarver, 256 Cal.App.2d 202, 64 Cal.Rptr. 7, 10 (1967) (agent not liable where he manifested his authority was conditional).

 

14. Restatement (Second) of Agency § 330 (1958) (“A person who tortiously misrepresents to another that he has authority to make a contract, conveyance or representation on behalf of a principal whom he has no power to bind is subject to liability to the other in an action of tort for loss caused by reliance on such misrepresentation.”); Restatement § 331 (quoted in preceding note); see also Glendale Realty, Inc. v. Johnson, 6 Wash.App. at 757, 495 P.2d 1375 (“Where a special agent exceeds his limited authority, he is liable ? for the fraudulent representations”); Swanson v. American Hardware Mut. Ins. Co., 359 N.W.2d 705, 708 (Minn.Ct.App.1984) (“If an agent tortiously misrepresents that it has authority to make a representation on behalf of a principal whom it has no power to bind, it is liable to the other party”).

 

15. See, e.g., Holst v. Fireside Realty, Inc., 89 Wash.App. 245, 256, 948 P.2d 858 (1997) (listing agent generally acts as agent for seller, not buyer).

 

16. Larson v. Bear, 38 Wash.2d 485, 489-90, 230 P.2d 610 (1951) ( “real-estate salesman is a special agent with authority limited to finding a purchaser of the property his principal has listed for sale [;]” real estate salesman does not have “implied authority to make a contract of sale”); Lee v. Estabrook, 28 Wash.2d 102, 108, 181 P.2d 830 (1947) ( “the employment of a real estate broker to sell land does not authorize the broker to enter into a contract binding his principal to convey the land”); Samson v. Beale, 27 Wash. 557, 567, 68 P. 180 (1902) (real estate broker's “[a]uthority to sell must exist by reason of special authorization”).

 

17. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989).

 

18. See Hoffman v. Connall, 108 Wash.2d 69, 72, 77-78, 736 P.2d 242 (1987) (real estate agent does not warrant or guarantee accuracy of boundary information provided by seller; although agent may be liable if negligent or deceitful, he or she is not liable for “innocent” misrepresentation (i.e., a representation made without negligence or deceit)).

 

19. An affirmative answer might arguably be supportable because the real estate agent is generally in a better position than the buyer to know whether the principal's signature is genuine. A negative answer might arguably be supportable because, if a real estate agent does not “warrant” the genuineness of boundaries, see Hoffman, 108 Wash.2d at 72, 77-78, 736 P.2d 242, he or she also may not warrant the genuineness of the principal's non-notarized signature; and also because, if Washington wanted to insure the genuineness of a signature on an earnest money, it could require (which it does not) that the signature be notarized. See RCW 64.04.020 (“Every deed shall be in writing, signed by the party ? and acknowledged by the party before some person authorized ? to take acknowledgement of deeds”); RCW 59.04.010 (“Leases may be in writing ? and shall be legal and valid for any term or period not exceeding one year, without acknowledgement, witnesses or seals”). It is likely that other considerations also apply.

 

20. 87 Wash.App. 320, 941 P.2d 1108 (1997).

 

21. Kelly-Hansen, 87 Wash.App. at 328-31, 941 P.2d 1108 (footnotes omitted).

 

22. Restatement (Second) of Judgments § 24(1) (1982) provides:When a valid and final judgment extinguishes the plaintiff's claim the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.

 

23. Restatement (Second) of Judgments § 24(2) (1982) provides:What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.

 

24. Restatement (Second) of Judgments § 24(2) cmt. a (1982).

 

25. Restatement (Second) of Judgments § 24 cmts. a-b (1982).

 

26. 106 Wash.2d 855, 859, 726 P.2d 1 (1986) (claim for life insurance proceeds precluded later claim for negligent issuance of same policy; “[i]f a matter has been litigated or there has been an opportunity to litigate on the matter in a former action, the party-plaintiff should not be permitted to relitigate that issue”).

 

27. 34 Wash.2d 645, 209 P.2d 457 (1949) (plaintiff sued a landowner and others for timber trespass; after final judgment for landowner, plaintiff sued landowner for unjust enrichment based on same facts; new claim precluded).

 

28. 181 Wash. 565, 569, 44 P.2d 184 (1935) (first action for injunction compelling possession and delivery of title to corporate stock; second action for damages based on conversion of same stock; second action was precluded by first; “res judicata applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time”) (quoting Sayward v. Thayer, 9 Wash. 22, 24, 36 P. 966 (1894), and citing numerous other cases).

 

29. 102 Wash. 95, 98, 172 P. 812 (1918) (first suit to enjoin violation of written agreement; second suit to reform same agreement; second suit precluded by first; “an adjudication is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties could and ought to have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action”).

 

30. 43 Wash. 613, 617, 86 P. 946 (1906) (plaintiff sued in own name, not as assignee, even though he had already received an assignment; after losing, plaintiff filed second suit as assignee; second suit precluded, as litigant may not “experiment with a court by trying his case piecemeal”).

 

31. 9 Wash. at 24, 36 P. 966 (“res judicata applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time”).

 

32. See Central Washington Refrigeration, Inc. v. Barbee, 133 Wash.2d 509, 513, 946 P.2d 760 (1997) (“Indemnity in its most basic sense means reimbursement and may lie when one party discharges a liability which another should rightfully have assumed”).

 

33. As discussed in Section I-A, we are unsure of the “act” that Sound Built is referring to.

 

34. Although Sound Built argues otherwise, Krikava v. Webber, 43 Wn.App. 217, 716 P.2d 916 (1986), does not contravene these rulings. Krikava speaks to a “cross claim that could have been brought but was not.” 43 Wn.App. at 220. In this case, as the text indicates, Sound Built brought a cross-claim for damages against Windermere on a negligence representation theory, then attempted to bring the same claim again on a breach of implied warranty theory. For that reason, Krikava does not affect this case.

 

35. RCW 4.22.040(1) (emphasis added).

 

36. Appleford v. Snake River Mining, Milling & Smelting Co., 122 Wash. 11, 15, 210 P. 26 (1922).

 

37. Proff v. Maley, 14 Wash.2d 287, 291, 128 P.2d 330 (1942); 18 Am.Jur.2dContribution § 22 (1985).

 

38. See 18 Am.Jur.2dContribution § 22 (1985); Arthur L. Corbin, Contracts § 924, at 620 (interim ed.2002); see also Franco v. Peoples Nat'l Bank of Washington, 39 Wash.App. 381, 387, 693 P.2d 200 (1984) (co-guarantor who sues in contribution must “collect equally and ratably among” the other coguarantors) (citation omitted); Hanson v. Hanson, 55 Wash.2d 884, 887-88, 350 P.2d 859 (1960) (wife due 1/212 of debt she paid post-divorce because former spouses “become joint debtors as to undisclosed obligations”); Proff v. Maley, 14 Wash.2d 287, 291, 128 P.2d 330 (1942) (where case settled for $4,640, each of four obligees owed $1,160); Appleford, 122 Wash. at 15, 210 P. 26 (coguarantor “is required to collect equally and ratably” among other coguarantors); Lindblom v. Johnston, 92 Wash. 171, 173, 179, 158 P. 972 (1916) (judgment entered against A, B, and C as contractual co-obligors; A and B paid judgment in full; acting in his own name and also as B's assignee, A sued C for contribution; C held liable for one-third); Brooke v. Boyd, 80 Wash. 213, 217, 141 P. 357 (1914) (“where five stockholders executed a note they thereby became co-sureties for it and each was liable to pay one-fifth of the whole and no more”) (citation omitted).

 

39. See 18 Am.Jur.2dContribution § 37 (1985).

 

40. By motion for reconsideration, Windermere argues that three parties, Sound Built, Robinson, and Windermere, were jointly and severally liable on Mastro's judgment, and thus that it should be liable for one third rather than one half. We disagree. The contractual relationship between Sound Built and Robinson was that of assignor-assignee. As a result, they stood in the same shoes and should be responsible for the same share. Sound Built and Robinson together are liable for one half, while Windermere is liable for the other half.

 

41. See Prier v. Refrigeration Eng'g Co., 74 Wash.2d 25, 32-34, 442 P.2d 621 (1968).

 

MORGAN, J.

 

We concur: SEINFELD, J., and HUNT, C.J.

 

________________________________

 

The Windermere Real Estate Relocation Rape Case:

Court Declares that Windermere "...condoned a rape by a business colleague..."

 

Editorial Preface: The incredibly violent and insidious psychological ramifications of rape, connected through an “abusive work environment” serves as an unfortunate yet credible subtext for the way in which Windermere Real Estate treats employees and damaged customers alike: Windermere’s application of aggressive, wasteful and mendacious litigation to stall and ruin innocent consumers, serves as the coercive metaphor of corporate power and arrogance: Windermere has no concern for the social damage it has done to people or communities. It cares only about how to manipulate the law and the courts to avoid any legal responsibility.

 

(Above L to R) Windermere CEO Geoff Wood (far left) is currently listed as a Governing Person of Windermere Relocation. Peggy Scott (second from left), also a current Governing Person of Windermere Relocation, "... did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little." Windermere General Counsel, attorney Paul Drayna (third from left) is listed as the registered agent of RELO LLC, the current entity name of Windermere Relocation. Windermere Founder John W. Jacobi (fourth from left) along with Gayle Glew (far right) are listed as Governing Persons of Windermere Relocation during the Little case. Glew told Ms. Little he did not want any "clouds in the office," and subsequently, after she would not accept a pay cut, that she should clean out her desk.

All citizens who abhor such treatment of women in the workplace should recall Maureen Little v. Windermere Relocation when choosing real estate services. WindermereWatch visitors will also want to read the United States District Court of Appeals Ninth Circuit's Order and Amended Opinion from the Little case.

 

Summarized and excerpted from a decision by the U.S. Court of Appeals

 

Maureen Little was employed by Windermere Relocation Services (“Windermere”) as a Corporate Services Manager, a position that required her “to develop an ongoing business relationship and relocation contacts with corporations in order to obtain corporate clients needing relocation services for their employees.” Until she was terminated, she received only positive feedback from her supervisors. Windermere’s records confirm that during the relevant period, Little had the best transaction closure record of all corporate managers by a large margin.

Unlike the other managers, Little’s employment contract provided that Little would receive $2,000 monthly, plus a $1,000 monthly override and $250 per closed sale. The override was based on the assumption that Little would close four transactions per month, with a provision for rollover when she did not make the target. According to Windermere President Gayle Glew, the other managers had not received the $1,000 override.

One of Windermere’s clients was the Starbucks Corporation. Some time in 1997, Little performed some relocation services for Starbucks Human Resources Director, Dan Guerrero, on a contract basis, and she learned from him that Starbucks was dissatisfied with its primary relocation provider. Glew told Little that he would “do whatever it takes to get this account” and that Little should “do the best job she could.” Thus, little believed that, as part of her job, she was to build a business relationship with Guerrero to try and get the Starbucks account, and she had at least two business lunches with Guerrero toward this end.

On October 14, Little accepted Guerrero’s invitation to discuss the account at a restaurant. After eating dinner with Guerrero and having a couple of drinks, Little suddenly became ill and passed out. She awoke to find herself being raped by Guerrero in his car. She fought him off and jumped out of the car, but again she became violently ill. Guerrero put her back in the car and took her to his apartment, where he raped her again. Little fell asleep, and when she awoke he was raping her again. Afterward, he showered and drover her to her car.

Little was reluctant to tell anyone at Windermere about the rape because, in her own words, “I knew how important the Starbucks account was to Mr. Glew. Mr. Glew would ask me on a consistent basis the status of the account and I was afraid that if I told him about the rape, he would see me as an impediment to obtaining the Starbucks account.” This belief was reinforced when, a few days after the rape, Little reported the rape to Chris Delay, Director of Relocation Services (apparently not one of Little’s supervisors), and Delay advised her not to tell anyone in management. Little believed that Delay feared “what might happen to [Little] if [she] did tell.”

On October 23, about nine days after the rape, Little reported it to Peggy Scott, the Vice President of Operations, who was designated in Windermere’s Harassment Policy as a complaint-receiving manager. Little described Scott’s response:

She came out around the desk and I could tell she was upset and she just gave me a hug and said she wished there was something she could do. She didn't understand what I was going through. She asked me if I was in therapy. Then she proceeded to tell me she wouldn't say anything to [Glew] unless I proceeded to seek legal action [against Dan Guerrero].

 

Scott told Little that "[s]he thought it would be best that [Little] try to put it behind [her] and to keep working in therapy," and that she should discontinue working on the Starbucks account. She did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little. Scott testified in her deposition that, because the rape occurred outside the "working environment," she believed that it fell outside the scope of Windermere's Harassment Policy.

 

Despite Little's supposed removal from the Starbucks account, Glew continued to ask her about the status of the Starbucks account during the next six weeks. "[As of December 2,] Gayle was asking me questions about Starbucks ... a couple of times every month to see what the status was." Concerned by Glew's questions, Little told her immediate supervisor, Linda Bellisario, the Vice President of Sales and Marketing, on December 2, 1997, about the rape. Little had been reluctant to tell Bellisario because she "felt that [Bellisario] would immediately go to Gayle and Gayle would terminate my position.... I knew how much this account meant to him. He said he would do whatever it took to get this account." Bellisario told Little to inform Glew of the incident.

 

When Little told Glew of the rape, which, according to Glew, was the first he had heard of it, Glew's" immediate response was that he did not want to hear anything about it." He told Little that she would have to respond to his attorneys. Glew then informed her that he was restructuring her salary from $3,000 monthly to $2,000 monthly plus $250 per closed transaction. The pay reduction was effective immediately and non-negotiable. Bellisario, who was present at that portion of the meeting, appeared "surprised and upset" to Little.

 

Little found the pay cut unacceptable, and Glew told her to go home for two days to think it over "because he did not want any `clouds in the office.'" When Little still found the pay cut unacceptable two days later, Glew told her it would be best if she moved on and that she should clean out her desk.

 

Little brought suit against Windermere, alleging unlawful discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e, and the Revised Code of Washington § 49.60; wrongful discharge in violation of public policy; and intentional, reckless, and/or negligent infliction of emotional distress. The district court granted summary judgment in favor of Windermere on all four claims.

 

Little appealed dismissal of her claims, and the appeals court reversed in part, and ruled:

 

In sum, taking the facts in the light most favorable to Little, because her employer effectively condoned a rape by a business colleague and its effects, Little was subjected to an abusive work environment that "detract[ed] from [her] job performance, discourage[d] [her] from remaining on the job, [and kept her] from advancing in [her] career[]."

 

Incredibly, Windermere asked for a rehearing, but "...the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

 

________________________________

 

WINDERMERE: AMERICA'S PREDATORY REAL ESTATE ENTERPRISE

Consumer advocates, legal experts and elected lawmakers all agree that the American real estate industry demands greater regulation to protect consumers from the human disaster of real estate fraud perpetrated by unethical realtors employed at companies like Windermere Real Estate. Windermere manipulates our clogged, inundated courts and the justice system to stall, wear down and financially exhaust victimized consumers, many of whom are wiped-out by the cost of pursuing civil justice in a process where innocent victims must CHASE perpetrators of real estate fraud through the courts AFTER a fraudulent offense has been committed. Acts of fraud are so common and widespread throughout the Windermere real estate network, that the defense of real estate fraud has become has become just another bottomline expense on the Windermere balance sheet. And the litigation nightmare of real estate fraud can happen to anyone who deals with Windermere Real Estate. It could happen to you. Windermere is by far the most unethical, deceitful, and culturally toxic real estate company operating in the United States. Windermere knowingly, deliberately, and unabashedly profits on corrupt franchise owners, brokers and agents with proven histories of fraud and ethical misconduct, many of whom are profiled in the pages of WindermereWatch.com. Despite Windermere's well-documented assault on victim speech rights, more and more unconscionable cases of Windermere fraud continue emerging.

Windermere is headquartered in Seattle, at franchiser Windermere Services Company. It was founded by John W. Jacobi, and he has kept the company a private, family-owned enterprise, eluding the transparency and ethical accountability required by stockholders. For decades, Windermere has harnessed the art of positive PR, affixing itself—however superficially—to community art events, the homeless, and even an annual college rowing competition which opens Seattle's boating season—the Windermere Cup—irresponsibly promoted by, and in conjunction with, the University of Washington. But those are the disingenuous and cynical sideshows created by an adept market manipulator, shown only briefly to the public, to obscure and obfuscate Windermere's true predatory nature.

FRANCHISER WINDERMERE SERVICES' MANAGEMENT TEAM AND DESIGNATED GOVERNING PEOPLE: EXPERTS IN MARKETING FRAUD, ABUSE OF THE LEGAL PROCESS, AND AT COERCING DAMAGED WINDERMERE CLIENTS INTO SILENCE BY SUPPRESSING THEIR SPEECH RIGHTS

The shameless greed and repugnant ethics of Seattle's Jacobi family, deliberately profiting on the loss and suffering of Windermere victims through commissions on the fraudulent home deals and unlawful misconduct of dishonest Windermere agents, brokers and franchise owners. Forget human decency, commercial reputation or social responsibility—it's all about the money.

Before turning the business over to his children and son-in-law, Windermere founder John W. Jacobi (left) simply ignored any complaints of fraud from Windermere victims, sending them straight to the lawyers. Yet despite claims of retirement, Jacobi is still indeed quite active at franchiser Windermere Services Company:

In Complaint 10-2-36192-8 SEA, filed in King County Superior Court on October 12, 2010, Windermere Services Company has sued former Windermere Puyallup Canyon Road owner Joe Maxwell for default on an “Unconditional Guaranty of Payment” promissory note. The Maxwell Answer and Counterclaims state that the “Plaintiff's [Windermere Services Company] claims are barred by Plaintiff’s fraud, duress, and unclean hands,” and alleges $4,000,000 in damages and violation of Washington's Franchise Investment Protection Act; and also that "The alleged Note and Guarantee are unconscionable and unenforceable." Maxwell's Counterclaims state "6. The WPCR Operating Agreement contains a provision granting Jacobi a special veto power which among other things, states that the company shall conduct its business and manage its affairs in accordance with the directions of Jacobi and all management decisions are subject to Jacobi’s review," and "13. In early 2006, WSC and Jacobi decided to open another WSC office in the territory in which WPCR was operating, despite the objections of Maxwell. As a result of the opening of this new WSC office, WPCR lost a significant number of its real estate agents and revenue that transferred to the new office in Graham, Washington," and "14. As a direct result of these actions taken by WSC and Jacobi, WPCR was left with a large debt burden and overhead, and WPCR’s revenue was significantly reduced... 22. On September 14, 2010, Maxwell heard from a real estate agent working at WPCR that the agent had received and email from WSC notifying him WPCR’s franchise had been terminated. This notice was sent to WPCR’s real estate agents before Maxwell learned of the termination of WPCR’s franchise." Read the complete report on this case here.

Jacobi's Washington Loan Company is also currently being sued for Intentional Misrepresentation—read that report here. And the Windermere affiliated service company, Commonwealth Land Title Company of Puget Sound, has recently been found negligent by a jury who awarded the third-party plaintiffs $1,190,000. Read the Commonwealth report here.

 

Current Governing Person and Windermere Services Company CEO Geoffrey P. Wood (left) is married to John W. Jacobi's daughter, Jill Jacobi-Wood. Wood is the chief architect of Windermere marketing fraud, inducing business volume through—among other fraudulent promotion—an express warranty of "The highest ethical standards. Uncompromising honesty and integrity." When called upon to honor his company's warranty, Wood instructs Demco lawyers—led by Matthew F. Davis–to sue vocal victims for libel and defamation. Wood is also a Governing Person of Windermere Relocation, the subject enterprise of Windermere's employee rape case. He was briefly a real estate sales person in 1994, but that license was CANCELLED in 1995, and Wood currently has no real estate license of any kind that WindermereWatch can find.

 

Governing Person Jill Jacobi-Wood (left), Windermere Services President, is a licensed real estate broker in Washington State, and as such is subject to the statutory condition of RCW 18.86.030 "(d) To deal honestly and in good faith." For her part in Windermere's marketing fraud and malfeasance, Jacobi-Wood's RE license should be cancelled by the Washington State DOL's real estate division. By promoting honesty and integrity—while in reality—she is suing and coercing Windermere victims to shutup about their Windermere experience, Jacobi-Wood is hardly dealing honestly and in good faith.

 

 

Governing Person John O'Brien "OB"Jacobi (left) is General Manager of franchiser Windermere Services Company and also has many Windermere realty brokerage offices. He's a licensed real estate broker who is also called upon by statutory law to "Deal honestly and in good faith." But John "OB" Jacobi instead promotes fraudulent claims of honesty and integrity, and falsely sues victims of Windermere misconduct for libel and defamation to intimidate them and coerce their silence. Then this junior Jacobi runs away and voluntarily dismisses his own mendacious lawsuit when a victim refuses to sign Windermere's dark clause settlement agreement that has cost the victimized party so much distress and money and to defend.

 

 

Windermere Services Governing Person and attorney—WSBA# 26636—Paul Drayna (left) has even more stringent ethical requirements placed upon him through his collateral professions of Lawyer and Notary Public; and Drayna is also bound by the Model Rules of Professional Conduct. But Mr. Drayna is not just practicing marketing fraud at Windermere. As Windermere in-house counsel, Drayna oversees Windermere's legal strategy of abusing process by falsely suing victims for libel and defamation, and then attempting to intimidate and coerce those victims out of their speech rights and into Windermere's Dark Clause silence agreement. When victims WON'T sign the Windermere Dark Clause, Drayna runs away too, and voluntarily dismisses his own company's lawsuit under Civil Rule 41—but only after first costing the victim thousands to defend the phony lawsuit. Drayna is even copied on the mendacious, Demco-authored settlement documents meant to quash speech rights and be signed by Windermere victims.

 

WINDERMERE'S DEMCO LAW FIRM: ESCHEWING ETHICS and DOING WHAT OTHER LAWYERS JUST WON'T DO

 

Attorney and multi-office Windermere broker John Demco (left) is the ethically-elastic Windermere kingpin lawyer who operates Demco Law, Windermere’s in-house legal firm, whose primary job is to stall and outspend small fry consumers damaged by dishonest Windermere brokers, agents and franchise owners. When an innocent real estate consumer has the misfortune to suffer one of Windermere’s many bad apples, Demco Law Firm will refuse to settle the matter forthrightly, no matter what conspicuously unlawful or offensive conduct the agent or broker has committed. Demco and Windermere will force the aggrieved party to sue or swallow their damage and go away—standard Windermere operating procedure.

 

WindermereWatch has compiled voluminous evidence that Windermere-Demco attorney Matthew F. Davis (left), WSBA# 20939, is the kind of lawyer about which jokes are coined. Davis is franchiser Windermere Services' frontline bully—the guy in the legal trenches actually wrecking lives, making threats, and suing victims who speak out. When Shakespeare was recommending "The first thing we do, let's kill all the lawyers," in Henry the Sixth, Part 2, he was talking about egomaniacal lawyers like Matt Davis.

Attorney Matt Davis of Windermere's Demco Law Firm is so unethical, so deceitful and intimidating, that he's famous in law circles. As Windermere-Demco's lead attorney, Matthew F. Davis is renown for his dishonesty, dubious legal tactics, lack of decency and disrespect for the rules of professional conduct. He will do absolutely anything to win—without regard for truth or justice. He will lie to courts and opposing parties. He will file fallacious and erroneous documents with the court. He will email opposing parties telling them not to hire a lawyer when he has just served them a lawsuit. He will call a judge's chambers and request more time without informing the opposing party. He will file orders for a bench trial when he knows a jury trial has been demanded and paid for. He will trick, stall, coerce, menace and threaten. He will invent and extend mendacious Windermere litigation and abuse the legal process for no other reason than to exhaust an opponent’s pocketbook. If he can, he will get YOUR attorney to quit—a favorite tactic.

Windermere, Davis and Demco Law will push a $5 cat poop case all the way to the state supreme court just to avoid paying damages—because it’s all in the Windermere operating budget. And in the end, Windermere and Davis will try to coerce silence about your Windermere experience by trying to make you sign a "settlement" agreement that terminates your speech rights, so you can't ever inform the public about your Windermere debacle. What if you DON'T sign that you'll shut up, and then SPEAK UP instead? Windermere-Demco's Matt Davis will sue you for libel and defamation, then run away and dismiss his own lawsuit on the eve of trial—because after all—you're telling the truth.

Windermere's Clear and Overt Marketing Fraud:

"THE HIGHEST ETHICAL STANDARDS. UNCOMPROMISING HONESTY AND INTEGRITY."

—The Windermere Real Estate Mission Statement

Windermere widely promotes its deceptive express warranty in sales documents and on the internet which states "We are committed to... The highest ethical standards. Uncompromising honesty and integrity." In other Windermere promotion, like the Puget Sound Business Journal, Windermere CEO Geoff Wood is quoted as saying "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." The article goes on to say, "Geoff oversees marketing, legal, financial and internet development services throughout the Windermere network..." Mr. Wood claims absolute dominion over both Windermere legal and internet strategy, making him chief architect of Windermere marketing fraud.

Effective reportage can be harsh in recounting facts, but it must be said in consideration of all the Windermere victims profiled here who truly sought Windermere's vaunted honesty and integrity, that Windermere Services CEO Geoffrey P. Wood is simply lying when he states his company's utterly false and fraudulent commitment to honesty and integrity. He both lies and deceives again when he says that "In the real estate business somebody's word is very important. If you say you're going to do something, you've got to do it." Wood clearly doesn't do what he says he's going to do—be committed to uncompromising honesty and integrity. Wood himself is indeed IN the real estate business and his word is absolutely no good at all. He sues victims of Windermere misconduct for trade libel and defamation to shut them up, and then he tries to use the legal system to suppress victims' speech rights when they ask him to actually perform on the warranty he promotes. As this website proves, Mr. Wood does anything BUT what he says he's gonna do. Far from providing victimized Windermere customers a commitment to high ethical standards, honesty and integrity, Wood and Windermere run away and hide behind their lawyers when innocent consumers are ruined by their Windermere experience.

John W. Jacobi, Geoff Wood, his wife Jill Jacobi-Wood, and governing cohorts John O'brien "OB" Jacobi and attorney Paul Drayna have gone to the absolute ends of the earth in stonewalling, ignoring, denying and fleeing any and all responsibility for Windermere wrongdoing and misconduct. When called upon by victimized Windermere consumers to make good on its warranty of honesty and integrity, Windermere even states in legal pleadings that Windermere agents are NOT agents of Windermere at all—but independent contractors. As the legally-designated Governing People and top managers of the Windermere empire who drive policy, ethics and market promotion, it demands repeating that John W, Jacobi, Geoff Wood, Jill Jacobi-Wood, John OB Jacobi and attorney Paul Drayna are all clearly lying when they promise high ethical standards and uncompromising honesty to the public and consumers of real estate services.

Protect your life, home, family and future by cancelling or not renewing your Windermere listing. Don't risk doing business with Windermere Real Estate, the brand built on lies, fraud and ruined lives. Refuse to fund public predator Windermere Real Estate with commission from the sale of your home.

________________________________

Is WindermereWatch.com of social benefit to consumers and the public? You decide:

Windermere Real Estate is one of our country’s largest real estate companies and widely promotes a fraudulent express warranty that states “We are committed to... The highest ethical standards. Uncompromising honesty and integrity.” The definition of an express warranty from Black's Law Dictionary is: "A warranty created by the overt words or actions of the seller. • Under the UCC, an express warranty is created by any of the following: (1) an affirmation of fact or promise made by the seller to the buyer relating to the goods that becomes the basis of the bargain."

But when customers are victimized by dishonest Windermere brokers and agents, and complain in writing through legal counsel to franchiser Windermere Services Company, it is absolutely silent in the face of clear and convincing evidence, and forces the customer to sue or go away. In many cases, unsuspecting consumer lives are thrown into complete chaos through costly litigation; and also because the subject homes may actually be uninhabitable or unserviceable for reasons about which Windermere knew and had a legal obligation to disclose—but did not. For some victims, the long and expensive litigation forced upon them even results in bankruptcy and homelessness. Despite their clear evidence, many victims go on to lose in court because they can't afford attorneys or have no legal experience, and Windermere exploits those impediments to endless advantage—lives, homes, and personal finances are ruined forever. And Windermere expects those victims to just go away without their lives and homes, merely for buying a house through Windermere Real Estate, innocently.

Although such irrefutable evidence of Windermere broker/agent misconduct has been presented to franchiser Windermere Services Company, it knowingly continues collecting commissions from dishonest agents and brokers by deliberately passing them on to other unwitting consumers. Just one example is Windermere S.C.A. Redmond's Paul Stickney, who received a $522,200 court judgment for not disclosing a conflict of interest, but is still producing commissions for his Windermere SCA franchise, and Windermere Services Company. Is that the "Highest ethical standards. Uncompromising honesty and integrity?" You may want to search and visit more websites about Windermere's predatory business conduct.

When victims use the media to report their Windermere experiences honestly, Windermere sues them for libel and defamation through false lawsuits to intimidate, silence, and hush bad PR—read one of those lawsuits here. It then tries to coerce victims into signing a “dark clause settlement agreement” that permanently terminates their speech rights—read some of those "settlement" agreements here. Through an expensive and emotionally distressing roller coaster ride with Windermere's nasty Demco lawyers, a victim of Windermere fraud is told they will be taken all the way to trial on trumped-up libel and defamation charges, and if they don't sign the dark clause, their life and future will be ruined. When a victim persists in refusing to sign, Windermere voluntarily dismisses its own lawsuit under Civil Rule 41, just before trial, after costing the victim years and yet thousands more to defend against the false action. This predatory legal tactic is known as abuse of process or malicious prosecution. In one example cited below, franchiser Windermere Services Company served an outspoken victim a lawsuit for libel and defamation, and then immediately sent them an email instructing that they "...need not hire an attorney," and further stating, “…we will try to resolve this directly and outside the legal system.”

Every Windermere office in every state is legally tied to franchiser Windermere Services Company's fraudulent express warranty, false advertising, predatory conduct and policies through privity and its pecuniary franchise agreement. Some legal observers believe that Windermere's conduct has RICO and Civil Rights violation implications. If you have recently purchased a Windermere franchise without having been disclosed Windermere's falling brand value, PR decline, and its adverse website problems, click here for its duty of disclosure under Federal Trade Commission rules. Proof that Windermere Services Company knew about WindermereWatch.com in March of 2007 is in this document.

Windermere Real Estate is a textbook corporate predator who operates franchises in Washington State, Oregon, California, Arizona, Nevada, Utah, Idaho, Montana, Hawaii and British Columbia. Windermere repeatedly makes the false claim that it has offices in Wyoming, but it does not. If you’re buying or selling property through ANY Windermere office, a percentage from your transaction will be used by franchiser Windermere Services Company to silence and financially ruin innocent parties who’ve encountered Windermere fraud. Windermere won't pay legitimate damages or acknowledge wrongdoing, and will stall settlement of cases all the way to state supreme courts, a legal strategy that Windermere routinely employs to bankrupt victims and exhaust their resources.

We believe the information presented here is of profound social benefit to consumers and the community, and we are dedicated to providing it.

THROUGH FEES AND COMMISSIONS PAID TO FRANCHISER WINDERMERE SERVICES COMPANY, EVERY WINDERMERE NETWORK OFFICE IN EVERY STATE IS AN ENTHUSIASTIC PARTNER AND KNOWING ACCESSORY TO WINDERMERE MARKETING FRAUD AND ITS PREDATORY POLICIES

(Back to top)